Consent, Coercion and Limit: The Medieval Origins of Parliamentary Democracy 0773510125

Citation preview

Consent, Coercion and Limit

THE MEDIEVAL ORIGINS OF PARLIAMENTARY DEMOCRACY

Arthur P. Monahan

CONSENT, COERCION, AND LIMIT The Medieval Origins of Parliamentary Democracy

The concepts of popular consent and limit, as applied to the exercise of political authority, are fundamental features of parliamentary democ¬ racy. Both these concepts played a role in medieval political theorizing, although the meaning and significance of political consent in this thought has not been well understood. In a careful, scholarly survey of the major political texts from Augustine to Ockham, Arthur Monahan analyses the contribution of medieval thought to the development of these two concepts and to the correlative concept of coercion. In addition, he deals with the development of these concepts in Roman and canon law and in the practices of the emerging states of France and England and the Italian city-states, as well as considering works in legal and administrative theory and constitutional documents. In each case his interpretations are placed in the wider context of developments in law, church, and administrative reforms. The result is the first complete study of these three crucial terms as used in the Middle Ages, as well as an excellent summary of work done in a number of specialized fields over the last twenty-five years. The book is of considerable importance not only to medieval studies but to the history of political theory and to political theory itself. It brings together and explains the relevance of a vast amount of material previously known only to a few specialists, documenting Monahan’s argument that later political thought has been significantly influenced by medieval formulations of the concepts of consent, coercion, and limit. Arthur P. Monahan is a member of the Department of Philosophy at Saint Mary’s University, Halifax.

McGILL-QUEEN’S STUDIES IN THE HISTORY OF IDEAS

1 Problems of Cartesianism Edited by Thomas M. Lennon, John M. Nicholas, and John W. Davis 2 The Development of the Idea of History in Antiquity Gerald A. Press 3 Claude Buffier and Thomas Reid: Two Common-Sense Philosophers Louise Marcil-Lacoste 4 Schiller, Hegel, and Marx: State, Society, and the Aesthetic Ideal of Ancient Greece Philip J. Kain 5 John Case and Aristotelianism in Renaissance England Charles B. Schmitt 6 Beyond Liberty and Property: The Process of Self-Recognition in Eighteenth-Century Political Thought J. A. W. Gunn 7 John Toland: His Methods, Manners, and Mind Stephen H. Daniel 8 Coleridge and the Inspired Word Anthony John Harding 9 The Jena System, 1804-5: Logic and Metaphysics G. W. F. Hegel Translation edited by John W. Burbidge and George di Giovanni Introduction and notes by H. S. Harris 10 Consent, Coercion, and Limit: The Medieval Origins of Parliamentary Democracy Arthur P. Monahan

CONSENT, COERCION, AND LIMIT The Medieval Origins of Parliamentary Democracy Arthur P. Monahan

McGill-Queen’s University Press Kingston and Montreal

© McGill-Queen’s University Press 1987 isbn 0-7735-1012-5 Legal deposit first quarter 1987 Bibliotheque nationale du Quebec Printed in Canada

Printed on acid-free paper This book has been published with the help of a grant from the Canadian Federation for the Humanities, using funds provided by the Social Sciences and Humanities Research Council of Canada.

Canadian Cataloguing in Publication Data Monahan, Arthur P., 1928Consent, coercion, and limit (McGill-Queen’s studies in the history of ideas, issn 0711-0995; 10) Bibliography: p. Includes index. isbn 0-7735-1012-5 1. Representative government and representation. 2. Democracy.

3. Constitutional law.

5. Duress (Law). 1. Title.

JC423.M65 1987

4. Consent (Law).

6. Middle Ages. 11. Series.

321.8

C86-094070-5

To Jean

\

Contents

PREFACE

ix

ABBREVIATIONS

xxi

INTRODUCTION

3

16

PART one: THE EARLY MEDIEVAL PERIOD

1. Christian Scriptural Sources 2. The Polity of the Israelites 3. Early Christian Sources 4. St. Augustine 5. Summary

16 21 27

29 42

6. Consent in Early Church Practices

46

7. The Early Medieval Christian Community 8. The Polity of the Pre-Christian Tribes

51 57

part two: the twelfth century

1. John of Salisbury: The Policraticus

48

57

2. Other Twelfth-century Sources 70 A. The Norman Anonymous 70 B. St. Bernard of Clairvaux 71 C. Hugh of St. Victor 74

Contents 3. The Renewal of the Study of Law 4. The Decretum of Gratian

74

81 97

part three: the thirteenth century

1. The Development of Legal Concepts 97 A. Quod omnes tangit: What Touches All 97 B. Representation 111 C. The Concept of Full Powers: Plena potestas 121 D. The Royal Prerogative 127 2. The Historical Scene 133 A. Electoral Practices: Majority Rule 133 B. Medieval Monasticism: The Dominican Order C. Urban Democracy 148

143

3. Political Theorists 159 A. St. Thomas Aquinas 159 B. Henry of Ghent 178 C. Godfrey of Fontaines 182 D. Aegidius of Rome 189 E. John of Paris 195 part four: the fourteenth century

1. Political Theorists 206 A. Dante Alighieri 206 B. Marsilius of Padua 209 C. William of Ockham 230 conclusion

254

BIBLIOGRAPHY INDEX

327

265

206

Preface

any theory of polity describing a system of government that can be called parliamentary democracy invariably stresses as an essential feature the consent of the people being governed: popular consent. This is why one modern historian of European representative political institutions has called the dictum “what touches all must be approved by all” a fundamental principle of democracy.1 A second feature in such a theory is reflected in the adjective “parliamentary,” and has to do with the manner in which consent of the people is expressed. This is done through the medium of a representa¬ tive governing body or parliament, whereby the people express con¬ sent through persons they choose to represent them in the governing body. In this way the governing body is responsible to the people insofar as those constituting the governing body’s membership are elected by the people, and thus acquire their authority from the people who elect them; the representative character of the elected governing body carries the element of popular consent. The people to be governed consent to being governed by those whom they choose to represent them as members of the governing body or parliament. To put this another way: the people govern themselves indirectly by choosing those who will govern in their place, and by consenting to be governed by these “representatives.” Consent by the people is also renewed or with¬ drawn through the regularity of the process of electing representatives. The peculiar juxtaposition of end and means in the political system designated as parliamentary democracy—the end being the consent by i. Antonio Marongiu, “Q.o.t.,” p. 101. Complete bibliographical data for footnote references are in the Bibliography.

X

Preface

all who make up a given polity, and the means being the limited-term election of representatives by universal adult suffrage—has taken many centuries to incorporate into political institutions, and even today only a minority of the world’s peoples live in societies that afford it genuine expression. Even such a simple account of parliamentary democracy emphasizes by implication a still more fundamental underlying feature of an acceptable polity: that of limit on the exercise of political authority. Parliamentary democracy reflects the notion of limit inasmuch as authority derives from the requirement of popular consent, authority here being limited in two senses. First, the requirement of popular consent imposes a limit inasmuch as absence of such consent signals absence of authority; secondly, the mandate extending authority to the representative body is limited temporally insofar as it runs only for a specified period of time and requires further temporally limited renewal. Some forms of parliamentary democracy, notably those of the British model, include a third element of limit: the government is limited by the requirement to retain majority support of the governing body (parliament), even during the statutory time limits of an election mandate period. A government must resign whenever it fails to retain majority support in parliament on a significant issue.2 Another aspect of the concept of limit as it operates in any form of polity is its connection with the concept of law, but for reasons that will be obvious shortly this specific issue can best be considered separately. It is a commonplace of any theory of parliamentary democracy that political authority should act “in conformity with the law,” that those who govern should do so “under the law.” There are serious ambiguities in such expressions, however. Insofar as political authori¬ ty, parliamentary or otherwise, is always conceded the power to make and change law, the issue of just what is meant by asserting that authority is itself limited by law is not at all clear. Such lack of clarity poses one of the most serious issues for any constitutional theory of state. A third essential feature in any theory of polity often receives much 2. Of course, this statement is not strictly true: there is no written constitutional requirement as such that a government failing to obtain a majority in parliament must resign. There is, too, the finely balanced question of when a given issue is significant enough to warrant the need for majority house support. Such questions and their answers are the preserve of constitutional experts and prime ministers, the latter having the practical last word on divining the meaning of custom.

Preface

xi

less explicit attention in a conventional description of parliamentary democracy. This is the element of coercion, perhaps more meaningful¬ ly expressed as sufficient power in the governing body to enforce its laws, policies, and decisions on the members of that polity. The issue of the meaning and definition of terms, always a bugbear in political theorizing, is immediately critical here. What difference, if any, is to be drawn among the terms “coercion,” “power,” and “authority”? The meaning of consent is obviously also critical. The issue of defining such terms is addressed directly later; and as the later material will show, the term “coercion” (coactio) is employed because it was the term designat¬ ing the notion at issue that enjoyed the greatest currency among medieval political thinkers. Coercion indicates a traditional early Christian view of political authority given widespread currency later in the Middle Ages, especially through the authority of St. Augustine. In this view, the physical force available to the state for imposing its laws on subjects is required to overcome the sinful nature of human beings: humans need to be forced to behave as they should. The view that ordinary people are not to be trusted to behave “properly” on their own was not an exclusively Christian attitude, of course. Plato’s views on the inadequacy of the average person who, not knowing where his real best interests lie, tries to be part of a governing group of similarly ignorant common folk are well known.3 Aristotle, too, had little faith in the working man’s, especially the poor working man’s, ability to govern.4 But the Christian doctrine of Original Sin, with its assessment of the de facto state of human nature as somehow perverted, gave powerful support to a political theory that emphasized the need for people to be forced into behaving rightly. Unless coerced, they could not be expected so to behave. The terms “power” and “authority,” on the other hand, tend to convey a more modern attitude insofar as they appear to lack the moral connotations of the medieval term coercion. This is seen as a benefit in elaborating a political theory: morally neutral terms indicate the further value of separating a theory of government from ethical considera¬ tions, a separation usually felt nowadays to be desirable, if not essential. There is something of a historical anomaly here, however. The turn away from the Augustinian overtones of the unnatural character of political authority in the term “coercion” began with the late 3. Plato Republic 8.555B-64A. 4. Aristotle Politics 6.5.1320330; cf. 6.4.1319b.

xii

Preface

thirteenth-century revival of Aristotle’s Politics, where the notion of political society is termed natural. But for Aristotle political theory also was a branch of moral philosophy.5 Certainly, no one can deny that any governing agency must have the power actually needed to carry out its will. For this not to be the case involves a contradiction: a government lacking the power to govern is simply not a government at all. Why, then, is this essential of polity sometimes scanted in the description of parliamentary democracy? One explanation is that acknowledgment of the need for coercion or power in a parliamentary democracy is implicit rather than explicit because of the conventional tendency towards simplification. Only one of several elements in a complex notion need be selected for emphasis; and the one feature usually given prominence in the notion of parliamentary democracy is freedom, the personal right of citizens to govern themselves, something they do by participating in government through the election process that produces their governing surrogate or representative. Further, freedom is perceived as the antithesis of coercion, resulting again in an oversimplifying tendency to construe coercion as incompatible with this form of government, although it is not. Thus, coercion is usually spoken of as having limits even when it is adverted to directly as a necessary feature of parliamentary democracy involving nothing more than the physical capacity to govern. Exercise of political authority (coercion) is legitimate only within limits; unlimit¬ ed political authority is not legitimate. There are some things political authority can and may do; other things it may (should) not do, even though it can! Expressing the notion of limit this way brings one back to the concept of law, and to the realization that another element in its meaning reflects the feature of limit. This further element relates to the question of purpose or end: what is law for if not to further the purpose of society itself, the living together of all members of a society in harmony and well-being: the common good, the good of all considered as a whole? Law properly speaking, then, should reflect the concept of limit intrinsically, its contents being limited by as well as expressive of its purpose. This is why Aristotle considered that a well-ordered society operating under the rule of law, whose contents aimed at establishing and preserving the common well-being of its citizens, reflected the element of popular consent, willingness, or acceptance to be under a 5.

Aristotle Nicomachean Ethics

1.2.1094319-1310.

Preface

xiii

political authority; this willingness was grounded in the fact that what “the people” willed (wanted, inclined to)—their collective well-being— was precisely what the authority, rulers, and laws aimed at as well.1’ Consent, in this sense, is to be construed as “a conscious acceptance” that need not be given expression through any direct and explicit action by the citizenry. Popular consent appears then under two aspects: (1) an active aspect according to which the people express their consent by actually doing something—voting, choosing, approving, acclaiming, concurring, and thereby providing evidence of their consent by performing a specific action; (2) a passive aspect wherein willingness, acceptance, agreement are understood to be present though not directly expressed or necessarily expressible in a specific procedure. The following account of the history of medieval political thought will show an oscillation of focus and interest between these two aspects, and only a very slow development in the direction of removing the ambiguity involved in failing to distinguish adequately between them. The concept of limit thus emerges as fundamental in relation to the notion of coercion as well as in the analysis of consent. The concept of limit, it seems, is a more basic element in a theory of polity than either consent or coercion. The same point can be made by the briefest reflection on the notion of totalitarianism, a typical contemporary designation for the antithesis of parliamentary democracy. A conven¬ tional criticism of totalitarianism is precisely that it advances a claim to the unlimited exercise of coercive power: a totalitarian political power claims the authority literally and legitimately to do anything. I would be prepared to argue on purely conceptual grounds that the kind of polity so simply and inelegantly described here as totalitarian (the term “absolutism” or “absolute” often connotes the same over¬ simplified meaning in ordinary contemporary usage)6 7 also involves a contradiction in terms, just as does the notion of a polity having no coercive power at all. Rather than consider this view directly, however, 6. Aristotle Politics 4.10.1295315. Cf. the explicit use Marsilius of Padua made of this notion. 7. But not always! Sometimes the term “absolute” is used even more loosely to mean simply the element in a polity that has the last word, the ruling entity whose decisions are not subject to limitation, rejection, or qualification from any other aspect of the political community. Thus, for example, one might refer to the conflict in the social and political history of the later Middle Ages as that between absolute rule and popular pressures: cf. Michael Wilks, “Coronation and Representation.”

XIV

Preface \

it may be preferable merely to inquire whether or not there is any contradiction between totalitarianism and parliamentary democracy, as the previous exercise in over-simplification might seem to imply. To put this question squarely: can one conceive of a parliamentary totalitarianism (or a totalitarian parliamentary system), that is, a parliamentary democracy wherein the elected governing body pos¬ sesses the rightful legal power to do literally anything it decides?8 An affirmative answer to this question can be established by no more complicated a procedure than soliciting replies to it from a representa¬ tive sample of ordinary citizens in any modern parliamentary democra¬ cy. Many persons are prepared at least on first consideration to maintain that a parliamentary form of government has the right to enact any legislation its majority approves, so long as the parliament has been elected properly. Nor is such an informal procedure for finding empirical evidence of a lack of contradiction between parliamentary democracy and totalitar¬ ianism the only way to establish the point at issue. There is, indeed, no contradiction between totalitarianism and the concept of parliamen¬ tary democracy as defined earlier, even allowing for the relatively loose character of the earlier definition; there is no contradiction between democracy, parliamentary or otherwise, and totalitarianism. The most basic contrast between types of polity rests on the polarity between the limited and the unlimited. What distinguishes basic forms of polity at the most fundamental conceptual level is the presence or absence of the concept of limit related to the exercise of power.9 There is an interesting epistemological parallel here, which would make a suitable subject for development in a different context. Ever since Aristotle’s formulation of the science of logic in the mid-fourth century b.c., logicians have understood that the basic unit of human (rational) thought also must exhibit the character of limit. A definition, the basic unit in human thought whose function it is to describe 8. See the recent examination of this concept in Talmon, Origins of Totalitarian Democracy. 9. The nineteenth-century so-called positivist approach to law, which has been very influential in the English and American legal traditions through the writings of Austin and Holmes, offers an interesting illustration of this point. Austin held precisely that there could be no legal limit on the sovereign, that is, that the lawmaking authority by definition has power unlimited by any higher legal authority: this is the essence of his concept of sovereignty. Austin accepted nonetheless that there might be other, non-legal, forms of limit on the sovereign and that the sovereign would and could make laws limited by ethical considerations. He also accepted that limits existed for the obligation to obey “morally iniquitous laws.” Cf. Hart, Concept of Law, pp. 203, 205.

Preface

xv

adequately a concept or idea, must describe a concept in a limited or limiting way; it must say what it is and what it is not, specifying the limit of a given genus by the appropriate specific difference.10 The Aristotelian tradition in political thought reflects this emphasis on the element of rationality, although it is not the only tradition to do so. The exercise of political authority should reflect an understanding, a reasoned or rational perception, of the purpose for governing. Such rationality clearly entails the element of limit: some governmental actions will correspond to and express the purpose for governing, others will not. It is possible to understand what the purpose of gov¬ erning is, and to decide rationally what actions must be taken to achieve this purpose. Governing properly means limiting the actions of gov¬ ernment to those that do achieve this purpose, and not performing actions that go beyond the limits of this purpose. The same mode of thinking can be found in the corresponding theory of law, according to which an essential component of law also is rationality: a proper law, entailing the obligation of obedience, must be “reasonable.” Its specifi¬ cation for how to achieve its purpose must reflect the limits of what should and what should not be done, limits that can be understood by human reason. There is a sense in which historical truth is distorted by designating this overall view as Aristotelian. Plato had expressed the same general theory of law and politics emphasizing the common rather than the individual good, and the necessity of understanding what to do, both individually and socially (politically), an intellectual perception itself based on clear vision: seeing things as they are.11 It was Aristotle, however, who gave a systematic, scientific formulation to these insights. The concept of law, then, is a fourth essential element in the development of a basic theory of polity, to be treated alongside the concepts of consent, coercion, and limit. As such it can be described loosely as the content or specification given to the concept of limit in the exercise of authority, the feature specifying and controlling coercion and directing those under authority; it directs members of a polity, both the governed and the governors, in attaining the common good, the purpose for which political authority legitimately exists.1'1 The foregoing remarks are the result of reflection on data gathered 10. Aristotle Posterior Analytics 2, esp. 3. 11. Plato Republic 7.134b; Phaeclo 65B-66A; Gorgias 502A-3D. 12. I acknowledge Hart’s essential caution about defining law exclusively in terms of orders issued by a coercing legislator. Such orders, however, are the paradigm case for law as it functions in political theory: see Hart, Concept of Law, pp. 26-41.

Preface

XVI

over a period of years in the study of medieval political thought, for some time I have been examining the meaning and extent of use among medieval political thinkers of the notion of consent, research that led naturally enough to an examination of the parallel concept of coercion. Gradually, however, I became convinced that a genuine understanding of the character of medieval thinking in the area of politics—what today can be called political science as long as the term “science” is not narrowly restricted to a purely empirical discipline that is then distinguished from political theory—required an appreciation of something other than views on consent and coercion. As subsequent pages will show, these two concepts were indeed part of the vocabulary of a very wide range of medieval political writers. Yet their presence and use are not what is most significant and most typical in the medieval contribution to the development of political theory. The essential character and perspective of medieval political thought focuses most strikingly on the specification given to the concept of limit. This conclusion may not seem especially significant inasmuch as there is nothing exclusively medieval in the view that limit is a necessary feature of polity.13 As already noted, both Plato and Aristotle stressed the same position centuries earlier, with Plato being clearer and more straightforward in putting the case: he contended that the proper exercise of political authority required self-control on the part of the ruler, with his activities limited to achieving and preserving the best interests and well-being of all members of society, and that the ruler was forbidden to further his own interest as such. For Plato the principal social virtue was justice, defined not as the interest of the stronger (the ruler) but as the harmony resulting from the proper ordering of all members of society, each in his appropriate place and each receiving his due in that place.14 Aristotle expressed substantially the same general position: good government is directed to the good of all the community, and the ruler is limited in his activities to furthering the common good; unlimited self-interest in the exercise of political power is wrong. With Plato, Aristotle designated government for the selfish interests of the ruler(s) as wrong, evil: tyrannical. The proper exercise of political authority must be limited; it must be right, virtuous in the sense of being limited by the constraints of what is “proper” for an activity whose purpose is the well-being of all rather than that of the ruler(s) alone. For Aristotle, 13. One recent study of medieval political history that also stresses the element of limit is Cam, Law-Finders. 14. Plato Republic 4.443c—E.

Preface

xvn

the best guarantee for proper limited rule is law; political authority should be exercised within the limit established by law.15 No novelty or uniqueness is claimed for the Middle Ages, then, by attributing to this period the general view that political authority is subject to limit, and that the specification of this limit is offered by law. Nor is there anything novel in maintaining that such a view was a fundamental feature of medieval political thinking. The specifically and peculiarly medieval connotations of this general principle, how¬ ever, have not always been adequately clarified. And there has been no consistency of interpretation about whether this principle had univer¬ sal application among those in the Middle Ages who claimed rights to the exercise of power. In particular, the power claimed by medieval ecclesiastical authorities in their efforts to exercise jurisdiction over temporal rulers often has been interpreted as a rejection of the principle espousing limit; limit, perhaps, for the legitimate exercise of temporal (political) authority, but no limit for the exercise of spiritual (ecclesiastical) authority.16 A focal point of scholarly activity reflecting this issue most clearly has been the study of medieval church / state relations, the sacerdotium / regnum issue that produced so much political controversy in the twelfth and thirteenth centuries and almost as much scholarly controversy in our own.17 One result of the intensity of the more recent scholarly controversy has been the impetus given to increasingly sustained and sophisticated research into medieval source material. It is now possible to offer a much more comprehensive picture of medieval political thought, a picture in which the elements of consent and coercion, along with the fundamental notion of limit, can be located with greater confidence. The title of this work suggests medieval origins for the contempo¬ rary theory of parliamentary democracy. The suggestion should not be construed too broadly, however, nor without sufficient qualification. Caution will be urged frequently against reading material through modern lenses. Concepts like consent and representation usually have a different, less specific, meaning for thinkers in the Middle Ages than 15. Aristotle Politics 3.11.1282(33. 16. A recent example of this general thesis as applied particularly to one specific late-medieval political theorist is Wilks, Problem of Sovereignty. Cf. Ullmann, Medieval Papalism\ Principles of Government. 17. The bibliography on medieval church/ state relations is enormous. For some recent lists of titles see: Tierney, “Recent Works” (reprinted in Tierney, Church Law)\ Wilks, Problem of Sovereignty, Ladner, “Bibliographical Survey.”

xviii

Preface \

in contemporary thought. They even appear as forerunners for modern political theories now seen in conflictwith one another. A good illustration is the wide-ranging controversy over the meaning and implication of consent within modern democratic thinking, a contro¬ versy ranging from conservative through liberal to Marxist views, and found also within the liberal tradition. The simple meanings offered initially for consent, parliamentary democracy, and representation are not meant to ignore the contemporary lack of consensus, and even conceptual disarray, over these notions; they are only rough direction¬ al guideposts to an earlier period from which more sophisticated theories developed. Our special focus of interest is the modern doctrine of democratic representative government; nonetheless, direct democratic republicanism and forms of so-called people’s democracy can also be traced to the medieval period. And certainly the more general model of limited constitutionalism, democratic or otherwise, is even typically medieval. The organization of material here also requires some comment. An early intention to examine only writings classifiable as works of political theory has been abandoned. In its place will be found a looser but much more encompassing examination of material that also covers writings on legal and administrative theory, as well as constitutional documents and other historical data. In this way a more adequate picture should emerge about how the medieval thinker himself perceived the nature of the issues addressed here. For unless contemporary preconceptions and assumptions can be eliminated from an investigation of things medieval, leaving only the perspective of the medieval mind, however incomplete the perception of that perspective might be, there is no prospect of offering an adequate portrait of our subject. A general Introduction presents an outline of the structure of the problem under examination, identifies the several research fields from which material can be derived, and offers a rough methodological formulation designed to provide some unity of perspective. Except for the final section, Conclusion, the remainder of the work is set out in four Parts in roughly chronological form, each dealing with a time frame that, though loose, offers a basic historical coherence. Part One presents the early medieval period, beginning with a survey of documents from the early Christian church, of which the first are the Sacred Scriptures of Christianity. It also examines the theological and political background of Christianity found in the Old Testament, the thought of the Christian Church Fathers, and the spread of Christian¬ ity through the Roman Empire through to the end of the Imperial era,

Preface

xix

continuing the historical account in cursory fashion down to the renewal of sustained Christian intellectual life in the twelfth century. An effort is made here as elsewhere to consider the relevant source material in the context of actual historical events and data. Part Two covers roughly the twelfth century, and reflects an important division in source material that emerges at this time. Not only does the twelfth century begin to produce more significant and more sophisticated efforts at examination of the nature of political authority, of which John of Salisbury’s Policraticus is the best example, but the development of legal studies and legal education in both civilian and ecclesiastical (canonical) forms that occurred at this time is, for our purposes, the most significant event of the period. Accordingly, attention is paid to the revival of the study of law, and in particular to the significant source material produced by both civilian and canonical legists. Part Three continues the chronological sequence through the thirteenth century, in many ways the most fruitful as well as the most typical period of medieval life and thought. A further differentiation of material and focus is also to be noted here. Intellectual activity has become even more intense, with a corresponding general increase in the amount of documentary material; legal and administrative studies and activities also have greatly increased, so that here too material for examination has increased significantly in both quantity and quality; and, finally, historical events themselves illustrate the maturing efforts of forceful political rulers, especially the kings of England and France, to establish what today would be called nation-states. All the problems and technical difficulties, both theoretical and practical, of ruling, administering, and legislating for an increasingly more closely organ¬ ized and geographically larger area came into clearer focus at this time. Both royal administration of the emerging nation-states and ecclesias¬ tical administration of the Church by the papacy reflect these facts. Part Four extends the account through the first half of the fourteenth century. These time frames, however, are not adhered to rigidly in the various Parts; to do so would distort the intellectual continuity of presentation. Thus, for example, no effort is made in Part One to examine data regarding ecclesiastical administration and canonical thinking down to the end of the eleventh century, data that are much better seen as background to the presentation of the twelfth-century revival of canon law in Part Two. Similarly, historical data from the twelfth century reflecting early examples of the political practice of

XX

Preface x

representation are dealt with in Part Three, along with the much more substantial data on the same subject from the thirteenth century. Information concerning the organization and administration of reli¬ gious orders and communities also appears in Part Three, even though some of the data relates to an earlier period. The problem of definition of terms already alluded to is an especially vexing one in the case of “consent” (and the correlative “representa¬ tion”). Intellectual history depends on much more than the discovery in earlier documents of terms having a recognizable modern currency. Some uniformity of meaning is a prerequisite of the continuity of doctrine, and the simple presence of a word in a medieval political document cannot guarantee that its user had in mind what is understood by the term today. As far as possible I have tried to let the documents speak for themselves, preferring to develop the meanings of key terms from the documents rather than imposing meanings from the outside. The author of a work as substantial in form as this, and of a manuscript as long in preparation, inevitably has a more extensive list of acknowledgments than can be made within limits set by practicality. My indebtedness to the scholarship of others will be expressed generally, then, through the use made of it and cited in the text and footnotes. I want, however, to note a specific debt of gratitude to John R. MacCormack, a colleague and friend for many years, whose shared interest in medieval intellectual and political history has made for many profi¬ table discussions and valuable criticism of my work. I want also to recognize several groups and individuals who assisted in more prosaic but no less necessary ways: the staffs of a number of libraries, especially the British Library, the library of Trinity College, Dublin, and that of my own university, Saint Mary’s, Halifax; Florence Elliott, my departmental secretary, and Shirley Buckler and Ann Hutt of the Word Processing Centre at Saint Mary’s; Valery Monahan, who typed the footnotes and bibliography in final form; Corinne Monahan, who assisted in completing the bibliography; and John St. James, who guided the manuscript so capably and amiably through the rigours of copy-editing. I wish also to express my appreciation to the Senate Research Committee, Saint Mary’s University, for providing grant monies in aid of research, the Canada Council for a Senior Leave Fellowship award, and the Social Sciences and Humanities Research Council of Canada for a subvention to assist publication.

Abbreviations

BN C/C Cod. Dig. Extrav. Gold as t Gratian Inst. Leg. Mansi MGH Nov. OND OpPl PG PL Sent. Sext. SS. S.T. X

Bibliotheque Nationale (Paris) Corpus iuris canonici Corpus iuris civilis Digesta in Corpus iuris civilis Extravagantes in Corpus iuris canonici Melchior Goldast, Monarchia s. Romani imperii Decretum Gratiani Institutiones in Corpus iuris civilis Legum in MGH Giovanni Domenico Mansi, Sacrorum conciliorum nova, et amplissima collectio Monumenta Germaniae historica Novellae in Corpus iuris civilis William of Ockham, Opus nonaginta dierum William of Ockham, Opera plurima (Lyon: 1495) J.-P. Migne, Patrologiae cursus completus, series graeca J.-P. Migne, Patrologiae cursus completus, series latina A medieval commentary on the Sentences of Peter Lombard Liber Sextus Bonifacii VIII in Corpus iuris canonici Scriptores in MGH Thomas Aquinas, Summa theologiae Decretales Gregorii IX in Corpus iuris canonici

CONSENT, COERCION, AND LIMIT

'

■

Introduction

an effort to provide a comprehensive account of the concepts of

consent and coercion as employed and understood in medieval political thought is a sufficiently ambitious task as perhaps to have its goal seem foolish, if not unattainable. The quantity of available material is vast and varied;1 and the areas of relevant and distinguisha¬ ble expertise, what might be called the topology of the subject, are sufficiently diffuse to daunt even the most foolhardy. The effort can have considerable value nonetheless. It is a truism that those who ignore or forget their history are in large measure doomed to repeat it, especially in its harshest and most tragic episodes. It is equally true, of course, that more than knowledge of the past is needed in order to avoid its repetition: the productive fields of human activity are watered by more sources than the streams of knowledge. The study of medieval history has undergone a curious if easily understandable development in the last century. When not reinforcing the Renaissance image of the Middle Ages as an era of darkness and superstition, the rationalist enlightenment of the eighteenth century had been content largely to dismiss medieval society as excessively

i. The judgment was made more than twenty years ago that “there are books enough to engage for years the attention of anyone curious to know how the medieval constitution of western Europe developed”; Lyon, “Medieval Constitutionalism,” p. 155-83. The bibliography at the end of this work is very selective. More recent bibliographies of varying levels of comprehensiveness can be found in Marongiu, Medieval Parliaments', Wilkinson, Creation of Medieval Parliaments', Cam, “Recent Books”; Law-Finders', Ullmann, Law and Politics, contains much bibliography; Cuttino, Medieval Parliament Reinterpreted;” Templeman, "History of Parliament’; Hoyt, Recent Publications.”

4

Introduction

religious, theological, and superstition-ridden. Nineteenth-century romanticism, on the other hand, became fascinated with medieval literature and folklore, as well as with its architecture and painting; and considerable interest in things medieval emerged in intellectual and artistic circles in the last century. Institutionalized Roman Catholicism provided another stimulus to a revived interest in the Middle Ages. Seeing themselves in continuity with the medieval period, and through it back to their church’s origins in Roman times, many later nineteenth-century Catholic churchmen and scholars encouraged a renewal of interest in the Middle Ages. Their motive was to discover, or rediscover, a continuity of intellectual and moral doctrines and institutions that might serve as a defence against the increasingly strident rejection of Christianity as a meaning¬ ful element in human life. The Catholic revival of interest in the intellectual life of the Middle Ages was largely stimulated by efforts made within the framework of institutionalized Roman Catholicism, in European Catholic seminaries and universities first, but spreading quickly to both North and South America. Here was an essentially defensive enterprise examining the Middle Ages in a search for doctrines and formulations that would serve as a base to preserve and enlarge the ethical and religious values of the Catholic church. Much of the impetus for the later nineteenth-century renewal of intellectual interest in things medieval thus originated in Roman Catholic circles, and had a religious raison d’etre. Much, but not all. Nineteenth-century romanticism’s interest in the Middle Ages has been noted. Further and, ironically, in a fashion that paralleled the expanding imperialism of Victorian England, English intellectual and academic circles in the last half of the nineteenth century developed a lively interest in the history and development of the institutions of British parliamentary democracy. This interest led to an examination of the medieval forms of English governance; and from this emerged the broad thesis that current British parliamentary forms reflected a political tradition whose relative superiority as a vehicle for popular democratic government was traceable back at least to the thirteenth century. The monumental historical scholarship of Bishop William Stubbs presented this thesis in its most authoritative and properly nuanced form,2 a thesis that, probably inevitably, was given a more 2. Stubbs, Constitutional History of England, especially vol. 2. An excellent summary of the Stubbs thesis concerning the origins of the British parliamentary system and of later reaction to it, can be found in the 1955 lecture of Edwards, Historians and Medieval English Parliament.

Introduction

5

simplified expression by less perceptive and more fervent followers of the great Anglican historian. The Stubbs thesis has been the stimulus in both the English-speaking world and western Europe for massive research into the origins of parliamentary and representative systems of government, a notable manifestation of which was the founding in 1936 of the International Commission for the Study of Assemblies of Estates-General (later renamed the International Commission for the History of Representa¬ tive and Parliamentary Institutions); and the end of this spate of research activity seems not yet in sight. Medieval historians engaged in this enterprise tended initially to focus their interest on the data concerned with the events of political history, and on political forms and institutions. The medieval and earlier periods were assiduously combed for evidence of aboriginal and nascent forms of parliamentary institutions and for illustrations of types of political representation.3 In what is by now an almost bewildering array of material and interpreta¬ tion resulting from a hundred years of historical research and controversy, a number of generally distinguishable positions have emerged in roughly chronological sequence. The original thesis that the British parliamentary system in its unique and superior form was traceable directly back to the late thirteenth-century parliament of Edward I (1295), with certain fundamental elements in place even earlier (for example, the Magna Carta, 1215) produced negative reactions of two kinds. The first was a revisionist interpretation of English medieval history, according to which the political realities of the thirteenth century simply did not reflect what was advanced by the original positive and enthusiastic thesis;4 the second, a product of the

3. A distinguished series of studies, monographs, and collections of papers has come from the International Commission for the History of Representative and Parliamentary Institutions. Originally conceived in 1933, it was established formally in 1936 as the International Commission for the History of Assemblies of State, a subcommittee of the International Committee of Historical Sciences, and changed its name to the ICHRPI in 1950. To date it has published more than sixty volumes. Antonio Marongiu has produced a large number of articles: see the list printed in “Theory of Democracy and Consent,” in Cheyette, ed., Lordship and Community, pp. 404-21. There are other extensive references here. Many notable contributions have been made by Gaines Post in a series of articles written in the 1940s and 1950s, most of which are reprinted in Studies in Medieval Legal Thought, and by Yves Congar, “Quod omnes tangit.” See also Gaudemet, “Unanimite et majorite”; and for a careful examination of the connection between public representation and royal taxation in medieval England, see Harriss, King, Parliament, and Public Finance. 4. Richardson and Sayles, “Origins of Parliament."

6

Introduction \

effort to examine medieval political institutions across western Europe on a comparative basis, advanced the view that comparable and roughly contemporary data from other parts of western Europe showed similar kinds of political evolution to that evident in England.5 As greater insight into the character of medieval political institutions developed it became clear, and generally although not universally accepted, that there is a genuine sense in which the origins of the modern parliamentary system can be traced back to the Middle Ages, and that some continuity can be found in substance as well as form.6 Research then began to focus on the issue of where these “popular” elements themselves originated. An operative feature behind one form of reply to this question of origins seems to have involved an assumption concerning the Middle Ages in general, namely, that a popular or democratic attitude would not have developed in the medieval European mind as such. Medieval European thought and institutions, it was accepted, were formed largely by the Christian church, an institution whose attitudes, especially in the Middle Ages, were antithetical to democratic or popular forms of expression, and indeed whose institutional character as typified by the thirteenthcentury papacy was a kind of paradigm of absolutism. The source of any medieval manifestation of popular or democratic views on political organization and institutions, then, could be expected to have derived from other than Christian sources, sources such as the Celtic and Germanic tribes of pre-Christian Europe, or to have been imported somehow from Greek democratic thinking. One specific form of this attitude, a form incidentally that accounts significantly for earlier lack of interest in medieval legal history, held that Roman jurisprudence in both civilian and canonical forms was absolutist in content and tone, and that constitutional concepts emerged in spite of medieval forms of Roman law; the fertile ground of English common law, which retained original Teutonic notions of liberty and was uninfluenced by Roman law, was thought to be the soil in which the origins of modern constitutionalism developed. Medieval scholars with a liberal bent operating in the Catholic tradition, on the other hand, were inclined often to interest themselves largely in matters of theology, philosophy, and political theory, rather

5. Cf. various writings of Marongiu, cited in n. 3 above. 6. For a recent well-balanced account of medieval constitutional history see Wilkin¬ son, Creation of Medieval Parliaments.

Introduction

7

than with the history of political forms and institutions. Political theory and not political institutions attracted their attention, particularly inasmuch as the institutional Church of the Middle Ages seemed a particularly hard case for anyone looking to discover attitudes and institutions congenial to liberal democratic values. The steady and sustained activities of research into medieval thought of recent decades have produced a much more realistic, if less dramatic, picture of the continuum of human political activity and thought through the medieval period. Medieval life and thinking perceived in the round, to the extent that this is yet possible with the limited evidence even now available to the most assiduous scholar, can be seen as both more and less in phase with twentieth-century attitudes than much of earlier research was prepared or even able to acknowl¬ edge. Much more in the way of data is now available; and the patient, painstaking and careful presentation of it by contemporary scholars working in depth on a host of individual and even apparently isolated research topics has made it possible to show threads of continuity and development that link the Middle Ages much more precisely both to what went before and to more recent, modern attitudes.7 The tools of historical interpretation, however, require appropriate application. This is especially true regarding items of much earlier vintage and available only in a language whose elements of important meaning developed in a context significantly different from our own. It is now clear as well that the interpretation of medieval political thinking involves the further need for some kind of sustained interdisciplinary approach. A noticeable feature, precisely, of recent medieval research activity in the area of medieval politics is that progress has been made in several areas of research by scholars who, while expert in a specific field, have found it possible to extend their investigations into other areas as well. A contemporary magisterial

7. The area of research having undergone the most extensive development in the post-World War Two era is canon law. Tierney has provided elegant support for the thesis of continuity between medieval and modern political thought: Religion, Law and Growth. The work as a whole is a statement in more summary form of the same general position found here. A more striking emphasis on the continuity between medieval and later political thought and legal development, alleging a revolutionary character in the development of the institutional Church and Church law from the Gregorian movement of the later eleventh century, is in Berman, Law and Revolution. Both these works came to my notice after the present manuscript was in draft form. See also Skinner, Foundations of Modern Political Thought, 1:3—22,49—68; 2:113—84.

8

Introduction

practitioner in medieval political research recently accepted, in ad¬ vance, criticism for his failure to incorporate material from a list compiled by himself of some twenty-five areas of specialization, with the justification that a fully comprehensive approach would require a multi-volume effort, and that even then the effort would not be complete: “Completeness cannot be aimed at in this subject.-’* The present work attempts to correlate only a small list of elements, for none of which anything more than minimum competence may be claimed. The attempt, however, reflects a judgment that only by bringing together the best in contemporary medieval scholarship from a variety of areas is it possible to gain the overview needed to make comprehensible this important and exceedingly interesting chapter in the history of western political thought. Contemporary scholarship dealing with the medieval notions of consent and coercion falls roughly into three categories: history of medieval political institutions, history of medieval political theory, and history of medieval law, the last having emerged into importance and prominence only comparatively recently. Research in all these areas quite properly has linked consent with the notion of “representation.” A central feature, understandably, has been an appreciation of the meaning of the term “consent” itself. Further, and again quite understandably, there has frequently been a tendency to construe the meaning of consent according to its usage in modern political theoriz¬ ing: namely, as agreement among representative members of an institutionalized assembly, council, or parliament to decisions and actions of that assembly.8 9 Consistent with such an interpretation, evidence of the element of consent then has been taken as evidence for the presence of the limiting feature of political authority so cherished by modern advocates of parliamentary democracy—popular consent; that is, the exercise of legitimate political authority is seen as limited by the requirement that those exercising authority must have approval from the (majority of the representatives in parliament of the) people. In fact, medieval political history and its documentation are amply supplied with references to assemblies, parliaments, and councils to which representatives were summoned and came, such representatives being possessed of all the authority (plena potestas) necessary to 8. Ullmann, Law and Politics, p. 13,11. 1. 9. As noted earlier, of course, the modern theory of representative democracy is not the only intellectual construction employing the notion of popular consent; nor are representative democrats agreed on its meaning.

Introduction

9

represent and give consent.10 Such evidence then has been interpreted to show medieval examples, more or less inchoate perhaps, of parliamentary institutions where the political authority (of the monar¬ chy, for example) was conditioned and limited in some way by the power resting in the hands of the representative members of the convened assembly. In order for the government to function, for the king to rule, according to this interpretation, representatives of some sort had to provide their consent. The representatives, then, limited and controlled the exercise of political authority by the monarch by giving or withholding consent. A more strict interpretation of the terminology in the sources for the history of medieval political assemblies, however, led other scholars to reject so sanguine a view of medieval political institutions in terms of finding the cradle of modern democracy.11 An alternative view of the medieval notion of consent has been advanced according to which the consent offered in the typical medieval assembly was, in fact, some¬ thing required of the attending representatives.12 The act of consenting was involuntary on the part of the representatives, and necessarily conformable to the royal authority as unlimited and, in the last analysis, absolute—having no constraints whatever. Accordingly, the emerging monarchies of the thirteenth century could be seen as forerunners of the modern absolute or totalitarian state.13 Investigation into the doctrinal sources of medieval political theory also has uncovered evidence of the element of consent among thirteenth-century political theorists such as Thomas Aquinas and John of Paris, for example. Here, too, as with many interpretations given to medieval institutions, there has been a tendency to construe a medieval theory of consent according to modern usage of the term, wherein agreement (consent) is seen as a necessary condition for the 10. See the important Post article, "Plena potestas." 11. Maitland is often credited with having taught this lesson forcibly: see Cam, “Evolution of the English Franchise,” especially p. 427; cf. Schuyler, “Historical Spirit Incarnate.” 12. Post, “A Roman Legal Theory of Consent”; see also Post, “Plena potestas” and “A Romano-Canonical Maxim.” 13. Reconciliation of these conflicting views of the medieval meaning of consent requires the distinction between passive (= compulsory in this context) and active meanings of the concept. Realization of the theoretical necessity to move from the former to the latter entails an adequate theory of the individual. As will be seen, William of Ockham is the only political thinker among those whose views are examined to show any doctrinal sensitivity to this crucial point.

io

Introduction

legitimate exercise of authority. Neither has the historian of medieval political theory had any difficulty finding evidence of the concept of limit as an essential condition for the exercise of political authority. Thus it has been relatively easy, probably to the point of the connection often being made unconsciously, to connect the concepts of consent and limit in the way they are connected in modern political theory. The consequent interpretation of the general thrust of medieval political theory, then, shows it as insisting on the limited character of legitimate political authority, and as inimical to any theory of absolutism or totalitarianism. A countervailing interpretation also has been postulated, however, emphasizing the apparently inconsistent attitude shown by medieval Christian theorists in their emphasis on the absolute primacy of the authority of the Church as a second “power.”'4 A reading of many medieval theoreticians on the authority of the Church as the dominant, spiritual, society has led to the contention that their claims here were for a full-blown absolutism for ecclesiastical authority over any and every political or temporal power. The particular focus for this version of medieval political theory may be found in the enormous body of research and publication dealing with the so-called church /state problem in the Middle Ages.15 And again, as in the case of controversy among historians of medieval institutions, those who affected a careful and strict interpretation of the terminology in the sources treating of the sacerdotium / regnum controversies, principally as regards the rele¬ vant ecclesiastical documents, have tended to advance the more critical view that the medieval Church laid claim to a form of absolute authority or sovereignty. Recent decades have seen a wide-ranging development of interest in the study of medieval law, both civil and canon, a development in some sense stimulated by precisely the issues already mentioned, and having to do also with curiosity about the nature and operation of medieval 14. A trenchant expression of the thesis that it was the medieval canonists who articulated the theory of papal political omnipotence can be found in Ullmann, Medieval Papalism. But cf. Tierney, “Some Recent Works;” and “Continuity of Papal Political Theory;” Gaudemet, “Collections canoniques.” Tierney’s generalized conclusions con¬ cerning the contributions of medieval canonists to the development of western constitutionalist theory are in Religion, Law and Growth; cf. Berman, Law and Revolution, esp. pp. 199-254. 15. Bibliographies on this subject can be found in many recent publications: Tierney, Crisis of Church and State; “Continuity of Papal Political Theory”; Wilks, Problem of Sovereignty, Watt, Theory of Papal Monarchy.

Introduction

11

political and administrative institutions. It is now quite clear, so much so that one may raise the question of why anyone should ever have doubted the fact, that the political and administrative institutions developed in the nation-states emerging from feudalism in the thirteenth and fourteenth centuries employed and incorporated principles and procedures found in and adapted from Roman law. Modern research into the history of medieval law has provided many correctives and solutions for the apparently conflicting and ambiguous interpretations previously asserted in the history of medieval political theory and institutions;16 and even though much remains to be examined among medieval legal sources, it is now possible to offer a reasonably comprehensive and comprehensible interpretation of the medieval theory of polity, and at least mitigate the more extreme and contradictory interpretations of earlier research in this held. A much more comprehensive and intrinsically more plausible picture is now emerging of the general thirteenth-century notions of state and human society, and of the relationship of the highly organized institutions of the Christian church with the developing national political entities of France and England, as well as with the increasingly anachronistic entity of the Holy Roman Empire; of the character and institutions of the emerging nation-states; of the in¬ appropriateness of trying to analyse and interpret ideas and political forms from the medieval era with tools of meaning and definition developed in later centuries; and, finally, of the gratuituously offensive and unnecessary assumption, formulable in any era but peculiarly attractive to our own, that earlier thinkers somehow functioned in an inconsistent, incoherent, and even contradictory manner. Thirteenthcentury western Europe was not the Europe of the late twentieth century. But this fact does not make our medieval European predeces¬ sors fools; at least it does not make them any more susceptible to folly than ourselves. History is a continuum, and the seeds of one era’s flowering are to be found in preceding times; an accurate account of history will acknowledge these facts. Accuracy and adequacy in the perception of earlier times, however, require careful elimination of later assumptions and prejudices. Historical investigation must accept

16. In particular see the extensive and refined research in the various writings of Tierney, Post, Stickler, and Watt as well, of course, as the pioneer work on canonical sources by Kuttner. Cf. also Berman, Law and Revolution and Skinner, Foundations of Modern Political Thought.

12

Introduction

what it finds, even though the finding of anything at all presupposes that somehow one knows what to look for. To understand medieval political thought one must begin with the most fundamental and most obvious feature of that period in western European history: its people were Christian. Medieval Europeans saw themselves as followers of Jesus Christ, committed to living as their Divine Master had instructed them, and as the leaders and institutions of the Christian church directed. The importance of this fact cannot be overestimated. It means, first of all, that every example of medieval political thinking will be an example of “Christian” political thinking, that every text of medieval political theory can be expected to reflect the influence of Christianity and be an expression of a “Christian attitude” towards its subject. The point at issue here, however, is not as simple as it might seem. Many efforts have been made, and at least an equal number of more or less derisory criticisms levelled, at describing a Christian attitude to various subjects and intellectual disciplines.17 Hence, extremes in such an enterprise must be avoided. To attribute too much to the attachment of the term Christian to a concept or theory is to fall victim to a peculiarly mischievous form of category mistake, as well as to fly in the face of empirical evidence to the contrary, evidence usually massive in quantity once an effort is made to discover and sift it thoroughly. There is no such thing as “Christian political theory” if such a term is taken to mean a single uniformly formulated doctrine that all Christian political writers articulate and to which they give assent. The notion of there being a single univocally formulated and universally expressed position subscribed to by all Christians on any subject is a myth; there are virtually as many specific formulations of any intellectual discipline by Christians as there are Christian formulators working in that discipline. It is equally a mistake, however, to deny out of hand any connection between Christianity and a given intellectual discipline or tradition. This extreme can appear in either of two forms, distinguishable on the basis of whether or not the proponent considers it possible for an intelligent human being to make a personal commitment to Christian¬ ity. Many thinkers of the last several centuries have maintained directly, even bluntly, that the doctrines of the Christian religion are 17. A standard context for an examination of the compatability of Christianity with any form of rational discourse has been an examination of whether there can be such a discipline as Christian philosophy; see Gilson, Spirit of Mediaeval Philosophy, cf. Gilson, Philosopher and Theology; Maritain, Essay on Christian Philosophy.

Introduction

*3

not compatible with rational thought and, consequently, that no reasonable person can formulate an adequate intellectual position on any subject that will accommodate a personal acceptance of Christian¬ ity: a person simply cannot be a believing Christian and, simultaneous¬ ly, a seriously rational thinker in any area of human thought.18 Accordingly, there can be no such thing as a validly Christian approach to any intellectual discipline, no such thing as a Christian political science, for example. The two halves of the compound concept are incompatible; the concept itself contains a contradiction. The second form of this extreme appears among thinkers who take a positive view towards the Christian religion. Again there is a denial of any such thing as a Christian approach to a given subject; not, however, because Christianity is seen as incompatible with rational thought, but simply because in some mysterious way a religious belief such as Christianity is considered not to interfere with the integrity of human intellectual activity.19 This point of view asserts, for example, that there is no such thing as Christian political science; there is only political science, whose students and practitioners share a common commit¬ ment to the essentials of a particular intellectual discipline, the abstract integrity of which is impervious to distortion from a religious source. The facts of the matter are other than what is suggested by either of these extremes. Notions such as a “Christian philosophy,” “Christian political science,” and so on are meaningful, and it is not difficult to appreciate their meaning provided that the definitions offered are not drawn so narrowly as to preclude them having any meaning at all. The term “Christian political science” can be held not to be self¬ contradictory provided only that the effort to give it meaning proceeds in a commonsensical manner. A definition developed in this fashion is necessarily loose and largely descriptive, containing the inevitable elements of ambiguity with which ordinary speech is fraught; but it can be both significant and useful. A Christian political science or, better, a Christian approach to political science is simply that approach, along with its results, that a believing Christian could be expected to take towards this intellectual discipline. Difficulties still can be found in such a formulation, of course, not the least of which has to do with defining what is meant by “political science,” but these can be left aside. It should

18. Gilson, Spirit of Mediaeval Philosophy, p. 3 and p. 427, n. 5. 19. C. Cierp, in Kleutgen, Laphilosophie scolastique, i:ix, cited in Gilson, Spirit, p. 427, n. 4.

14

Introduction

be noted, moreover, that this definition includes an element of content in the term “approach,” content deriving from the Christian religion. This element of content is noted in the definition; its substance, however, is susceptible in some way to examination in terms of empirical evidence. Simply put: a Christian approach to political theorizing can be expected to contain and reflect views accepted by the Christian who is formulating it, and these views themselves can be identified as elements of Christian doctrine that have a connection with the area of politics. The evidence concerning the relevant elements of Christianity, as well as our understanding of them, requires a historical judgment. Consequently, these elements also must be disentangled from their history, a task not as difficult to achieve, however, as this description might indicate. The documents themselves are, first and foremost, the authoritative texts of the Christian religion, texts accepted by Christians as the direct expression of truths revealed by God: the Sacred Scriptures, which include both the Old and the New Testaments. As well there are the other authoritative writings of the institutional Christian church, texts and documents given approval by the Church either as products of individual Christian writers whose works have been accepted by the institutional Church or as products emanating directly and formally from the institutional Church itself. In addition to matters of literary text and context there are the important factors of historical and sociological character related to the community into which the religious writings of Christianity were received. The founder of Christianity, Jesus Christ, presented himself as a “saviour” to a specific religious community that was also a specific racial and historical entity: the Israelites. The earlier of the two most authoritative documents among the Christian sacred writings is also a history of the Israelites as “the Chosen People.” Details of the history of the tribes of Israel, including details of their social and political organization, are thus part and parcel of the revealed writings of Christianity, and enjoy some form of authority among Christians from this fact. This is not to say that the cloak of authority thrown over the general contents of the Old Testament is an adequate basis for prescribing the facts of Jewish political and social history as the paradigmatic structure for a Christian political society. However, one should expect some connection. On the negative side it must be recognized that the Christian community in the first centuries of its existence was a purely religious

Introduction

*5

community, with neither the characteristics nor the aspirations for functioning as a political society. Its members were themselves members individually of a political society formally holding different religious views, and within which for the most part Christians were an insignificant and powerless element. The early Christians living as either citizens or slaves within the Roman Empire during the first three centuries of the Christian era did not see themselves in any position to implement political theory, whether or not they might have wished to apply ideas and precedents detailed in the Old Testament. More to the point for our purposes, there was little incentive among early Christians to formulate anything at all in the way of political theory, even among early Christian intellectuals, of whom the numbers were not large. Formulation of political theory, even more particularly than is the case with many other forms of intellectual activity, is for the most part a subsidiary, subordinate, and secondary activity, following on and responding to actual social and political realities and perceived opportunities. These facts account largely for the absence of any really serious or sustained effort by early Christian writers to produce anything approximating a treatise on politics. There are other reasons for this lacuna, not the least of which is a fundamental feature of Christianity itself, namely, that it is an “other¬ worldly” religion, directed in its focus of interest to a world other than the one presently inhabited by humans. The explicit words of its founder assert: “My kingdom is not of this world.”20 Accordingly, the early Christians were not primarily concerned with the details of social and political organizations in this world, except as these details impacted on their other-worldly religious interests. Nonetheless, the writings of Christianity do contain elements having both direct and indirect connections with the order of polity, which one can expect to find in any effort by a Christian to formulate a theory of polity. These elements in the Christian Scriptures are fundamental texts in the formation of Christian attitudes towards the world of politics; attention is directed to them in the first portion of Part One.

20. John 18.36.

PART ONE

The Early Medieval Period

1.

CHRISTIAN SCRIPTURAL SOURCES

what might be called the particular ambiance of other-worldliness reflected generally in Christian doctrine and deriva¬ tive directly from the Christian Scriptures, there are individual biblical texts that exhibit a definite attitude towards political matters, if not some form of political thought itself. These texts can be expected to exert an important influence on the thinking of any Christian, for whom their contents in some sense have the authority of divine revelation. The Scriptures possessed an authority that simply could not be gainsaid by a Christian; their contents were accepted as truth, guaranteed by God Himself. Thereby, they enjoyed status as the highest authority, and were to be studied assiduously. What is at issue, then, is the simple but crucial fact that medieval Christian thinkers were influenced by the Christian Scriptures, as they understood them. Neither the truth of these texts themselves, nor the accuracy of the interpretation given them, is thereby at stake, however. The medieval Christian perception of their truth and the medieval interpretation given them are the critical issues; and both of these are historical phenomena. Of greatest importance were statements made directly by, or directly attributed to, Jesus himself. The sources of these were the writings of the New Testament, particularly the Gospels of Matthew, Mark, Luke, and John, authors considered to have been divinely inspired as well as having known Jesus at first hand. The rest of the New Testament canon had equal authority as divinely inspired, as did the contents of the Old Testament. A major qualification applied to the earlier Testament, in addition to

Early Medieval Period

n

however; it described a religious dispensation that had been supersed¬ ed by the religion established directly by God through Jesus Christ. The religion of the New Testament, accordingly, took precedence over that of the Old; primacy of truth and authority was conceded to the texts of the New Testament wherever they varied from or failed to reflect the contents of the Old. Elaborate and sophisticated methods of exegesis were developed in the course of time for dealing with the Christian Scriptures, by which relative weightings and means of assessment and interpretation could be applied to the sacred texts; but the details of such exegetical methodology need not be provided here.1 Of course, the Christian Scriptures were not composed in any of their several parts for the purpose of outlining a theory of govern¬ ment; but this fact should not be taken in too simplistic a fashion. For as we shall see shortly, the Old Testament does offer an account of the government of God's Chosen People, the Israelites. As well, the obscurity still surrounding the issue of precisely how the early Christians saw themselves in continuity with the original Chosen People makes it very difficult to appreciate the political thinking of the early Christians. In the event, too, the earliest Christians lived under the political sovereignty of the Roman Empire, whether as citizens or something else, and they perceived their social, economic, and political circumstances as affording little prospect for their own independent polity, even had they aspired to such. Just what the early Christians understood by the New Testament description of them as members of the “kingdom of God,” a term not found in the Old Testament or in other Jewish literary sources, is also interesting, but it is a side issue and need not distract from our principal concern.2 Nor should subsequent political thinking among either the early Christian or contemporary Jewish societies that almost certainly reflected the influence of political realities on the circumstances of the two groups. How medieval Christians perceived the polity and political thought of early Christians is our concern, rather than how the early Christians themselves saw these things. And it was really much later when Christian writers undertook a systematic winnowing of Scriptural texts in the search for data and directives for organizing both temporal and 1. The earliest explicit efforts to apply an exegetical methodology to the Christian Scriptures were made by Origen, although he did not attempt himself to lay down a set of explicit rules for the exegesis of Scripture: Origen, Homilia 12, in Numeros, Origenes Werke, 7:2, p. 93. Cf. Smalley, Study of the Bible. 2. See Grant, “Idea of Kingdom of God.”

i8

Consent, Coercion, and Limit \

spiritual societies, with results that in some instances were truly amazing.3 A number of Scriptural texts, however, have always been accepted as having unmistakable and important connections with a theory of polity; and they were so recognized from the beginning of Christianity. One New Testament statement explicitly attributed to Christ bears directly on the political. Queried about whether or not to pay taxes to Imperial Rome, the occupying power under which the Jews were currently living, Christ is reported as having replied: “Render to Caesar the things that are Caesar’s, and to God the things that are God's.”4 The particular significance of the issue of “tribute to Caesar’’ can be seen from the fact that there are two other references to it in other Gospel accounts: the question of how to respond to the obligation of paying taxes to Caesar appears also in Mark 12:13—17, while Christ is accused of having forbidden the payment of tribute to Caesar in Luke 23:2. The single statement in Matthew, however, is by far the most important text of the three, and must be seen to constitute the cornerstone of any Christian doctrine of politics. Given the Christian’s attitude towards the New Testament, it is only to be expected that a Christian theory of polity will accept the admonition to “render to Caesar what is Caesar’s.” The statement is largely hortatory, of course, but not entirely so; its context shows this clearly. Nor was it ever so interpreted. It raises inevitably the further question of what, precisely, is Caesar’s; but this question itself accepts that something belongs to the temporal and political. Christians are here instructed to act in appropriate ways towards two, 3. In his edition of Aegidius of Rome's De ecclesiastica potestate Scholz lists more than two hundred Scriptural texts employed by medieval advocates of papal power: Aegidius of Rome, De ecclesiastica potestate, pp. 214—15; see also John of Paris, On Royal and Papal Power, p. 166. The pervasiveness of biblical ideas and terminology in medieval formulations of principles of government is shown by Ullmann: “Bible and Principles of Government.” Cf. Foreville, “Recours aux sources scripturaires." Ullmann also shows here how the Latin Vulgate Bible used Latin terms reflecting concepts from Roman law that were not necessarily identical in meaning then with either those of the Greek Septuagint or the more distant conceptual framework of the Hebrew formulation of Jewish thinking found in the Old Testament. The Vulgate text transmitted Roman legal language and ideas to the medieval Christian West, and did so in a manner both religiously authoritative and largely unnoticed. Ullmann contended further that no single source was more influential than the Bible on political and legal thinking in the Middle Ages, and expressed amazement at the gap in medieval research on this score. Unfortunately, the gap remains largely unclosed. 4. Matt, 22.21.

Early Medieval Period

!9

and two distinct, authorities, the (human) authority of Caesar and the (divine) authority of God. A necessary and immediate inference from such an instruction is that Christians are to accept two different and distinguishable spheres of governance, the temporal and the spiritual, each of which is legitimate. Denial of legitimacy to temporal political authority, then, is not consistent with the Christian religion. Conse¬ quently no professing Christian, especially one occupying a position of prominence or importance in the Christian church, should be expect¬ ed to deny the legitimacy of temporal authority as such. Nor does one find any instance of such direct denial of political legitimacy by a Christian thinker.5 Thus, it should be surprising to find historians failing to acknowl¬ edge this fact. Yet how often has the history of medieval western Europe been presented in terms of instances where Christian leaders, especially popes, have denied the legitimate exercise of temporal authority by kings and emperors, claiming for ecclesiastics some form of absolute authority over temporal affairs?6 To deny that one or other of the medieval popes or any of their theologian or canonist supporters ever claimed that temporal rulers lacked all legitimacy is, of course, not to deny that medieval Christian churchmen made claims of superior jurisdiction over temporal rulers, or that some medieval churchmen in certain circumstances claimed actual temporal jurisdiction over tempo¬ ral rulers. Still less is it to question that some medieval ecclesiastics denied to temporal authority a form of jurisdiction generally acknowl¬ edged today to be a perfectly legitimate exercise of secular political power. Nor is it to deny that the claims of at least some medieval churchmen exceeded the limits of propriety in an acceptable political theory. Medieval Christian thinkers and churchmen had many arrest¬ ing things to say about the relationship between church and state, and about the relative superiority of spiritual over temporal authority. This 5. One of the most extreme formulations of the theory of papal supremacy, by Aegidius of Rome, still provides explicit acceptance of the legitimacy of temporal authority: see Part 3, 3D, below. 6. There is an almost irremovable ambiguity in the term “absolute.” Another view of this ambiguity, from the opposite side and involving language normally seen as contradictory to the above, is seen in Post’s designation of Philip the Fair as a “constitutional” monarch, on the grounds that he based his major decisions on the expert legal opinions of members of his royal council: “Vincentius Hispanus,” p. 179, especially note 73; cf. Strayer, “Philip the Fair.” Treharne also speaks of “the essential conditions of royal absolutism in thirteenth-century England,” these conditions being the implied limitations on royal authority: “Constitutional Problem,

p. 56.

Consent, Coercion, and Limit \

20

is particularly true in the case of advocates for the plena potestas of the papacy—papal supremacy—where some forYnal statements assert very broad claims. Nonetheless, the most fundamental Christian text on politics accepts the legitimacy of the lay exercise of temporal power as such, and no medieval Christian could be expected to repudiate this position. Other biblical texts should be mentioned also in order to see the full range of elements likely to be found in a Christian formulation of political theory. A general, but absolutely compelling, feature of the contents of both Old and New Testaments is the admonition that rulers are constrained to obey God, to be obedient to the laws of God. A corresponding feature is the enjoining of Christians to obey human rulers insofar as these rulers enjoy their authority as given them by God. Citations from both Old and New Testaments to substantiate these two points are many, and the issue is sufficiently well known not to require references to them all. Old Testament sources are the more numerous, but both St. Peter and St. Paul are also explicit on the point. Christians are advised by Paul to be obedient to their masters, political and otherwise, inasmuch as the source of all authority is God Himself. To be obedient and subordinate to one’s master is in some way to be obedient and subordinate to God Himself: “Let every soul be in subjection to the higher powers” (Romans 13:1). “Render to all their due: tribute to whom tribute is due; custom to whom custom; fear to whom fear; honor to whom honor” (Romans 13:7). On the point of all authority deriving from God: “He who resists the power withstands the ordinance of God” (Romans 13:2 and 5; cf. Titus 3:1 and 2; 1 Timothy 2:2). These texts from Paul are quoted by other Christian writers from the second century onwards, along with the Matthew text concerning tribute to Caesar; the latter is cited by St. Justin Martyr in his First Apology 17.7 St. Peter also instructed Christians to be subject to their masters, even to the extent of accepting injustice: “For if one who suffers unjustly bear his trouble for conscience sake, this is grace” (1 Peter 2:18).8 Christians, then, not only accepted the legitimacy and integrity of temporal political authority; they accepted that those who exercised such authority did so on behalf of God Himself, from Whom political

7. Justin Martyr First Apology 17; cited in Carlyle and Carlyle, Mediaeval Political Theory, 1:129. 8. Cf. Matt. 3.4-6; Luke 13.14-16.

Early Medieval Period

21

authority somehow derived. I hey also accepted that they had a moral and religious obligation to obey temporal authority, and that it was directed to the common good.9 Another clear feature of both Old and New Testament texts on temporal political authority was that such authority was exercised for the purpose of fulfilling a divine plan.10 This had two aspects: (1) temporal authority as such was subordinate to God’s (spiritual) authority; (2) Christians had an obligation to God (to the order of the spiritual) that transcended their obligations to temporal authority. Finally, one should mention the New Testament text given copious consideration and interpretation among medieval theologians and jurists, Luke 22:38: “Here are two swords; to which He [Christ] replied: ‘That is enough.’” Clearly lacking explicit reference to any order of polity as well as any clear directive about how Christians were to behave, this text became fundamental for papal monarchists intent on showing that both spiritual and temporal authority fell somehow under papal jurisdiction: there were two swords in the possession of the Church. The use, and abuse, of this text by thirteenth- and earlyfourteenth-century advocates of papal power illustrates well the ingenuity that could be employed by the medieval mind to advance a particular theory virtually independently of any intrinsic meaning in the sacred text to warrant such an interpretation.11 2.

THE POLITY OF THE ISRAELITES

In addition to reflecting these attitudes and admonitions regarding a theory of polity, the Christian Scriptures also offered

the Old

Testament account of the political history and system of God’s Chosen People. One can read here the advice given the Israelites by their God Who enjoined on them obedience to Himself. For the most part Christians have understood that the “kingdom of Christ” was not of this world; and when this notion was taken in conjunction with other statements in the Gospels and Epistles referring to Christianity as a “new” law or dispensation, it was construed as a warning not to try to create a heaven on earth, as well as not to renew the kind of society their Jewish predecessors had described in the Old Testament. There have

g. Ibid. 10. 1 Peter; cf. texts cited in n. 8 above. 11. Cf. Aegidius of Rome De ecclesiastica potestate 1.7—9; 2.13-15.

Consent, Coercion, and Limit

22

\ been exceptions to this general interpretation, however;12 and even where the generalization holds, a Christian’s political theorizing, especially that of a medieval Christian, can be expected to be influenced by knowledge of the history and political system of the Chosen People, the Jews. The details of this history and polity, therefore, are important background

material

for early

and

medieval

Christian

political

thought. A qualification: no advocacy is being made for the historical accuracy of a would-be literal Old Testament description of the Jewish polity, nor for the accuracy of the medieval understanding of this account. Even less is there any actual or implied validation of the political theory embedded in this account. Only very recently have scholars employed the sophisticated tools of modern textual exegesis and linguistics in combination with new data from archaeology and anthropology to provide a fuller and more coherent picture of early Jewish history. A much earlier, simplistic reading of the Old Testa¬ ment, however, was what influenced medieval political thinkers from Augustine to Ockham and beyond concerning the origins of the Israelite temporal polity as a monarchy.13 A fundamental feature of the Israelite polity was that it was monarchical throughout much of its existence, and monarchical in a very specific way. The relevant Old Testament sources reveal that early Jewish society did not make a clearcut distinction between the roles of spiritual and temporal leadership and authority. While they under¬ stood the distinction between spiritual or religious activity, such as offering sacrifices to the Lord, and political or temporal activity, such as defending the tribe against physical aggression and waging war, they made no rigid distinction between persons who were to perform these different functions and exercise the authority requisite for them. Leaders in the early period of Jewish history exercised both offices concurrently. According to the traditional account of Hebrew history their earliest rulers were judges and prophets, with the priestly caste claiming and exercising separate prerogatives only as time went on. Beginning with the Book of Genesis, the Old Testament offers an 12. Cohn, Pursuit of the Millenium. Cf. Beskow, Rex Gloriae. 13. For a standard contemporary account of the Jewish monarchy see Bright, History of Israel, pp. 184-339; and a briefer account of the history of the Israelites: Albright, Biblical Period. The basic Old Testament account of the Jewish monarchy is found in Deuteronomy 17 and 1 Samuel. What follows in the text summarizes that account and contains only essential reference citations within the text itself. I have not examined the literature on the Essene cult or the Dead Sea scrolls.

Early Medieval Period

23

account of the creation of the world along with a description, largely genealogical for the earliest period, of how human society in the persons of the Israelites began with the original couple and spread across part of the territory now called the Middle East. The author of Genesis, commonly accepted to have been Moses, himself the divinely appointed leader of the Chosen People who had freed them from captivity in Egypt, traced his own lineage through the genealogy back to Adam. The genealogical account also presents the history of the Jewish monarchy. The first specific mention of a king for the Jewish people is of Melchisedech, “the king of Salem and priest of the most high God” (Genesis 14:18). However, earlier references were made to there being kings of other tribes than the Israelites.'4 Moses also was the combined spiritual and temporal leader of his people, as is clear from the lengthy account given of his life in Exodus and Deuteronomy. He was chosen directly by God to lead the Israelites; and throughout his life he en¬ joyed a direct, if irregular, relationship with the Lord, from Whom he received the set of laws by which the Chosen People were to be gov¬ erned. The Jews at this period clearly were being ruled politically by their highest spiritual leader. Equally clearly, each of the twelve tribes making up the Chosen People had its own temporal leader or prince; and the male members of the tribe of Levi, from the family of Aaron, were specially designated to perform the religious duties of offering sacrifice and acting as judges in matters of law. These latter persons did not share directly in the inheritance rights of the Jewish law, but en¬ joyed a special status through which they lived from the fruits or offerings made “to the Lord as the priests’ due from the people” (Deuteronomy 17:1-8). At a certain point in their history, God informed His people that “I will set a king over thee as all nations have ... him whom the Lord shall choose” (Deuteronomy 17:14-15), a promise that was fulfilled when the prophet Samuel was told by God to anoint Saul. Saul thus became 14. The properly medieval context for inquiry concerning early examples of temporal rulers was the examination of the question whether kingship preceded priesthood, an issue having to do with the priority of the two spheres. Medieval knowledge of early communities other than the Israelites was very limited, naturally; and modern research provides for judgments not open to earlier periods. One source of medieval information on early non-Israelite societies, saying nothing for the moment about the accuracy of data from the source, was Augustine De civitate Dei 16.17. Cf. Hugh of St. Victor De sacramentis 2.2.7; John of Paris De potestate regia et papali 4.

24

Consent, Coercion, and Limit \

formally the first king of the Israelites, in the sense that he became the first purely temporal or political leader of the Chosen People who was not concurrently chief priest and spiritual leader as well. A separation of powers by persons occurred at this point. The relevant Scriptural text contains interesting details concerning the procedure by which Saul came into office, as well as a somewhat ambiguous reference to the reason for the event. The Jewish people as a whole seemingly had asked the elderly Samuel to “make us a king ... give us a king to govern us” (1 Samuel 8:5-6), because his own sons were failing to provide appropriate judicial services. Samuel interpreted this request as a rejection by the Jews of his own role as prophet; but when he took up the matter with the Lord, he was told that the Jews were rejecting God Himself rather than His prophet, Samuel, and that he was to describe to the Jewish people the specific and unpleasant consequences that the imposition of a king’s “rights” on them would entail. Samuel did so, adding his own comment that the Chosen People would soon “cry out” against such a regimen. The Israelites ignored their prophet’s advice, however, and repeated the request for a king “so that we will be like all nations, and our king shall govern us and go out before us, and fight our battles for us” (1 Samuel 8:20). When Samuel reported back again to the Lord, he was instructed to “hearken to their voice, and make them a king” (1 Samuel 8:22), God apparently being prepared to accede to His People’s request even though He thought it was a mistake and was unhappy about it. The prophetic account of the establishment of a monarchy among the Israelites, then, shows a reluctant God consenting to a popular demand, and a clear warning of the dangers involved in the demand itself. There is also the mournful inference that, in requesting an earthly king, the Chosen People were somehow rejecting their divine, invisible ruler. The later account of the Jewish monarchy by the Old Testament historians repeatedly emphasizes this mistake, the disloyal¬ ty to the Lord it involved, and the suffering experienced by the Jews as a result. The Lord then identified Saul to Samuel as the person chosen by God to be “prince over my people Israel” (1 Samuel 9:16), and Samuel anointed Saul, saying: “Has not the Lord anointed you to be prince over Israel?” (1 Samuel 10:1). Samuel called together all the people of Israel, arranging them by tribes and by families within tribes; and employed a lottery system for the selection first of a tribe, then of a family within that tribe, then of an individual within that family to be

Early Medieval Period

25

identified as the person who should be king. The lot fell ultimately to Saul, whom Samuel already knew to be God’s choice; and Samuel then identified Saul to the people, Saul himself appearing to the Jews as “taller by a head than any of them” (1 Samuel 10:23). The people for their part then “all cried and said God save the king” (1 Samuel 10:24). Finally, Saul instructed the people concerning the law of the kingdom, and left a book containing the law in the presence of the Lord (1 Samuel 10:25). An earlier text wherein God had promised to establish a king for the Israelites is more explicit on the requirements for this last activity: “After he [the king] is raised to the throne of his kingdom, he shall copy out to himself the Deuteronomy of this law in a volume, taking the copy of the priests of the Levitical tribe, and he shall have it with him, and shall read it all the days of his life, that he may learn to fear the Lord his God, and keep his words and ceremonies, that are commanded in the Law” (Deuteronomy 17:18-19). The same text speaks of the king’s sons reigning “after him” (Deuteronomy 17:20); but this did not actually occur in the case of Saul. Having become displeased with Saul’s unworthy behaviour, the Lord chose someone else directly while Saul was still alive. The factual details in the Old Testament account of the establishing of the Jewish monarchy in separation from the role of the priesthood are worth enumerating in review: (1) The action itself of establishing the monarchy was taken at the request of the Jewish people. (2) God’s view of a temporal monarchy separate from the spiritual leadership of the Chosen People was negative, although He acceded to it. (3) God Himself chose the recipient of monarchical authority directly, the choice being made known first to God’s minister-priest. (4) The person chosen by God to be king (Saul) was anointed by God’s minister-priest before he was identified to the people; the actual procedure for identification of the person to be king involved an established system of casting lots. (5) The person identified by this procedure was recognized by the people as “superior”—in the case of Saul he was seen to be physically taller and stronger; later, however, when God became unhappy with Saul’s tenure and chose David to succeed Saul, the Lord asserted that He “does not judge according to the look of man ... but according to the heart” (1 Samuel 16:7); God’s minister, it seems, proclaimed that the person selected to be king had been chosen by God, and that he was unlike all the other people. (6) All the people then acknowledged the chosen one as king: yet not literally all, for one group refused to do so at the time, offering their allegiance only after

20

Consent, Coercion, and Limit \

Saul had proven himself successful in battle. (7) The law of God was then explained to the people by God s minister-priest, who reiterated that this law was the framework for the exercise of the monarch s authority. This represents a repetition of an earlier procedure wherein the chosen leader of the Jews, as both priest and king, was also instructed by God to rule by following and correctly interpreting God’s law. A striking example of the way the Jewish monarchy was identified as the model for a proper temporal polity is the very late medieval text, Vindiciae contra tyrannos, a sixteenth-century pseudonymous work of French provenance called one of the two most important political writings opposed to absolute monarchy in the two centuries preceding Locke’s Second Treatise on Government,15 Not only does the Vindiciae text specifically invoke the Jewish monarchy as model, it also invokes the principle of popular consent and the view that political authority devolves on a ruler through the people’s agreement; and it finds evidence for both these elements in the Israelite model, emphasizing the typically medieval reference to the Jewish monarchy as divinely established and thereby “proper.” The author’s formula is that God “chooses” the king, while the people “establish” him in office.15 15. Oakley, “Road from Constance”; also “Figgis, Constance”; Laski, ed., Natural Law, pp. 118-20. The Vindiciae text was available in England as early as 1589, and went through three English editions before the end of the seventeenth century. 16. “The people of Israel demanded a king. God gave and appointed the law of royal government contained in the seventeenth chapter, verse fourteen of Deuteronomy. ... You see here, that the election of the king is attributed to God, the establishment to the people: now when the practice of this law came in use, see in what manner they proceeded. “The elders of Israel, who presented [sic] the whole body of the people ... came to meet Samuel ... they demanded a king of Samuel, who asking counsel of the Lord, he made known that He had chosen Saul for the governor of His people. Then Samuel anointed Saul, and performed all those rights which belong to the election of a king required by the people. Now this might, perhaps, have seemed sufficient, if Samuel had presented to the people the king who was chosen by God, and had admonished them all to become good and obedient subjects. Notwithstanding, to the end that the king might know that he was established by the people, Samuel appointed the estates to meet at Mizpah, where being assembled as if the business were but then to begin, as if the election of Saul were then only to be treated of, the lot is cast and falls on the tribe of Benjamin, after on the family of Marti, and lastly on Saul, born of the family, who was the same whom God had chosen. Then by the consent of all the people Saul was declared King. Finally, that Saul nor any other might attribute the aforesaid business to chance or lot after that Saul had made some proof of his valour in raising the siege of the Ammonites in Jobish Gilead, some of the people pressing the business, he was again confirmed king in a full assembly at Gilgal. Ye see that he whom God had chosen, and the lot had

Early Medieval Period

27

Other Old Testament texts also reflect the element of popular consent to temporal authority in a suitably enigmatic way: for example, “All the people made him their prince” (Judges 11:11). Finally, it should be noted again, the Old Testament account of the Jewish monarchy consistently represents the efforts of the Israelites to function “like other nations” under a separate temporal ruler as a mistake. The Jews seem to have preferred their own peculiar form of political order, a theocracy wherein God alone was king and His chosen priests both ministered and administered God’s reign, this reign being a worldly one, but not exercised directly by any earthly or merely temporal monarch.17 3.

EARLY CHRISTIAN SOURCES

Medieval Christian views and doctrines on the nature of polity were established on a foundation perceived as the fundamental truths and directives of Christian revelation found in the New and Old Testa¬ ments, particularly those Scriptural texts to which reference already has been made. These texts, as has been seen, accepted the legitimacy of temporal authority: “Where there is no ruler the people will fall” (Proverbs 11:14), and enjoined obedience to the ruler as a religious obligation. Other documents also figured in the background to which the medieval mind was inclined because of its bent towards the acceptance of authority. They were the writings of earlier Christian thinkers, such as they were known. It is essential, then, to have a sense as well of what these other source materials were; for they show directly, first of all, what were major sources for medieval political separated from all the rest, is established king by the suffrages of the people” (see n. 15, above). At the time I prepared my summary of the Old Testament account of the origins of the Jewish momarchy, I had not seen the Vindiciae text. 17. Grant, “Idea,” p. 439. This account of the origins of the Jewish monarchy from the perspective of the medieval Christian believer obviously ignores many difficulties and apparently irreconcilable elements in the sequence of the Old Testament text. A fully coherent account, taking into consideration later interpolations and problems of textual sequence has become possible only fairly recently as a result of brilliant contemporary efforts at textual exegesis and reconciliation with archeological, anthro¬ pological, and linguistic data: cf. Bright, History of Israel. Specific reference to the Old Testament account of the origins of the Jewish monarchy are in John of Salisbury, Thomas Aquinas, Aegidius of Rome, John of Paris, Marsilius of Padua, as well as the canonists: see Part 3 below. For information on. the legal use of Scriptural texts see Foreville, “Recours aux sources scripturaires.”

28

Consent, Coercion, and Limit \

thinking and, secondly, they present some of the raw material with which later Christian thinkers worked in the formulation of their own views. For the most part, early Christian writers were no more interested in developing a political theory as such than were the writers of the Old and the New Testaments, although, as with the fundamental texts of Christianity, some of the products of early Christian writing reflect elements for a theory of politics at least indirectly. For example, in defending their fellow Christians against various forms of Roman persecution, Christian apologists of the second and third centuries emphasized certain notions clearly reflecting an attitude towards the areas of politics and temporal authority. First, they insisted that Christians recognized the legitimacy of temporal authority in general: Justin Martyr quoted the Matthew text: “Render under Caesar the things that are Caesar’s”;18 while Irenaeus spoke of a temporal government as established by God, citing Proverbs: “By me kings reign and princes administer justice.”19 Secondly, the Apologists made much of the rights of Christians to practice obedience to a higher religious authority. Theophilus of Antioch, in the second century, insisted that Christians were obliged to obey their civil ruler, but not obliged to adore the Roman emperor;20 Tertullian expressed the same opinion.21 Somewhat later, the more intellectually sophisticated Christian think¬ er, Origen, actually raised the question why Christians should be asked to obey civil authority inasmuch as this power comes from God, when civil authority actually persecutes them. His reply was to the effect that power can be misused without being lost; then Origen went on to locate the reason for man’s position of servitude to authority in the order of sin.22 Irenaeus,23 and later Ambrosiaster writing in the mid-fourth century (366-82), interpreted a basic Pauline text on a Christian’s obligations towards obedience (Romans 13:1) as meaning that the prince is “a ruler over sins” (minister poenarum).2 4 St.John Chrysostom 18. Justin Martyr First Apology 17. 19. Irenaeus Adverse haereses 5.4; cited in Carlyle and Carlyle, Mediaeval Political Theory, 1:129. 20. Theophilus of Antioch Ad Autolyeum 3.14; (PG 2:41a), cited in Daniel, “Omnis potestas,” p. 45. 21. Tertullian Ad Scapulam 2.7 (Corpus Christianorum, Tertulliani opera, 2:1128), cited in Daniel, “Omnis potestas,” p. 45. 22. Origen, cited in Daniel, ibid. 23. See n. 17 above. 24. Ambrosiaster Commentarium in epistolarum ad Romanos 13.1 (PL 17:162D), cited in Daniel, “Omnis potestas,” p. 49.

Early Medieval Period

29

also identified sin as the reason for humans being obliged to submit to civil authority, though making as well the point that the Divine Will and Wisdom have established that governments exist.25 4.

ST. AUGUSTINE

The most important early Christian writer whose views influenced later medieval theories on the nature of polity, however, was St. Augustine, whose impact here as well as in many other areas of medieval thought was decisive for almost a millenium. And this is true even though the great African Church Father nowhere formulated anything like an ex professo treatise on politics. Individual statements and somewhat larger texts having some connection with political thought can be found in a variety of writings in the large Augustinian corpus, but Augustine no¬ where offered any specific presentation of a theory of polity. The City of God has been interpreted at times as if it were such a document, but it is not. The operating distinction between “heavenly” and “earthly” cities in its basic structure has been pressed to provide an Augustinian for¬ mulation of the nature and relationship between the spheres of the spiritual and the temporal, but such an interpretation casts this some¬ times ponderous literary masterpiece in a false perspective.26 Its author did not directly address the sacerdotium / regnurn issue. Augustine, how¬ ever, did offer some basic themes that connect with a theory of polity. With all Christians he held that the ultimate purpose of human life in this world is an eternal life after death: true human happiness is to be found in an unending life beyond this world.27 Further, Augustine accepts and applauds the view that a happy person’s life in the world will be social, while acknowledging that terrestrial life is often miserable; he also notes that the saints in heaven enjoy a social life.2H Augustine maintained with St. Paul and other early Christians that submission to political authority, as to any form of authority, is submission to God Himself.29 Political obedience, thus, is a religious 25. John Chrysostom Sermo IV in Genesim 203 (PG 54:596—97), cited in Daniel, “Omnis potestas,” p. 51. 26. See Gilson’s review and assessment of various interpretations of the “two cities” image in his foreword to Augustine, City of God, Fathers of the Church series. The original French version appears in Metamorphoses, chap. 1 and 2. 27. Augustine De civitate Dei 19.4. 28. Augustine De civitate Dei 19.5; see also De bono conjugate 1.1; De civitate Dei 19.12; Quaestiones propriae ex epistolis ad Romanos 7. 29. Augustine probably was influenced here by Origen; see Daniel, “Omnis potestas," p. 51.

go

Consent, Coercion, and Limit

obligation. For him political authority was instituted by God as a remedy for sin, seemingly denying that human government is a natural or essential feature of human society. He maintained that in the state of nature, by which he means the state enjoyed by Adam and Eve in the Garden of Eden before their commission of the Original Sin. human beings had no need of a social organization employing force or coercion. The primitive state of the first (two) humans being one of full rationality and freedom, there was no need for physical force to be employed to guarantee proper behaviour; government of one human by another was not part of this “natural” state of mankind. God willed that rational creatures should have dominion over irrational creatures, but not over one another.30 Because his argument on this point is somewhat tortured in expres¬ sion and was so influential in later medieval political theorizing, it bears reformulation. Augustine contended that by nature no human is a slave, either to another human or to sin. Yet slavery as a social institution is seen to be legitimate in current positive law, while this same law enjoins general preservation of the law of nature. Therefore the legitimation of slavery, the forceful subordination of one human to another, is evidence of a violation of the original law of nature for which slavery must be a punishment. Had no violation of the law of nature occurred, the punishment of slavery would not have been necessary. Coercion, then, even so severe a form of coercion as slavery, is a form of punishment and is a good for a wrongdoer.31 Had there been no initiating sin or wrongdoing, the corrective punishment of physical coercion would not be needed; and in this sense it can be termed unnatural. Augustine here uses the term “coercion” (coactio) to designate the power of the state; and he does so elsewhere as well.32 Basically, Augustine accepted slavery as a legitimate social institution; the fact that Roman law enshrined it in legislation is one of the premises from which his doctrine of coercion as punishment, and the state as somehow unnatural, flows. Augustine, however, never discussed the issue of the origin of the state either directly or in detail. The text in which his views on the origin of political authority are most directly expressed centres on an

30. Augustine De civitate Dei 19.15. 31. Augustine De civitate Dei 19.16. 32. Augustine De Genesi ad litteram 9.9, cited in Carlyle and Carlyle, Mediaeval Political Theory, 1.167.

Early Medieval Period

31

exhortation to those in authority in society, especially the paterfamilias, to act from a sense of service.33 The general impression given in this and other texts, however, is that he does not distinguish political from other forms of authority, and that his paradigm case for the exercise of authority is that of master over slave. Like slavery, which he accepts as legitimate it not natural, the institutions of government, coercion, and punishment are brought into human society by sin. They are God’s just punishment for human sin, the providential dispensation for dealing with the disorder and strife that are the consequence of sin. For Augustine, the essence of political authority is its coercive character; without coercion the state is not a state. Political authority and its coercive power and aparatus are what transforms a society into a state. For him society has its origins in the order of nature, but the state is a dispensation rooted in sin. Clearly for Augustine, human nature is social, not solitary, and in their original natural state (prior to the commission of the Original Sin) all humans are equal and subject only to God and not to one another, though there is some natural gradation of one human to another even in the original state: for example, of wife to husband and child to parent. But such gradation does not extend to that of ruler over ruled.34 Exercise of political authority, then, is legitimate but not natural; the natural as so defined did not fully survive the sin of Adam and Eve. Thus, there were only two real examples of humans living in the original state of nature, and these two for only a portion of their lives.35 33. Augustine De civitate Dei 19.14-15. Markus, “Two Conceptions.” Post makes a case for softening the denial by Augustine that political authority and the state are “natural”: Studies, pp. 500-502; see also Chroust, “Fundamental Ideas,” pp. 17-18. 34. Markus, “Two Conceptions,” p. 77. 35. A later medieval text on the issue of whether the exercise of authority by one human over another is natural extends the Augustinian doctrine in a conscious effort to bridge the gap between the original Augustinian terminology and the Aristotelian conception of political society as natural. St. Bonaventure speaks of there being three ways in which a human can be said to exercise authority (potestas dominandi): (1) the power to use something in his possession: it functions in every state of human nature, including that of original innocence; (2) the power of domination, as commonly understood, encompasses one human’s power to command another human being who is capable of understanding and obeying; this power obtains both in the state of original integrity and innocence before the Fall and in the state of fallen nature: examples are the authority a husband has over a wife, and a parent over a child; (3) the power of domination, properly speaking (proprie) is identifiable with coercive power, It is operative only in the state of fallen human nature, wherein the authority some humans have over others is in some sense a preternatural punishment for sin (quodammodo praeternaturaliter in punitionem

32

Consent, Coercion, and Limit \

Augustine’s emphasis on the legitimacy of political authority and of coercion as an instrument of public policy directly parallel his view concerning the subject’s obligation to obedience. Both the legitimacy of temporal power and the obligation to obey it are integral elements of the divinely ordained and instituted order encompassing the universe and mankind’s place in it after the Fall. Further, Augustine urges the view that human legislation is necessary to prevent, or at least inhibit, the worst excesses of human wickedness, since the dispositions of human nature that reflect the natural moral law are not sufficient in themselves, after the damage caused by the Original Sin, to guarantee against wrong behaviour. Human laws, however, do not inhibit or command every feature of human activity, only its most fundamental features.30 Human nature is in itself, so to speak, social; but its state is damaged as a result of the Original Sin, such that humans are organized into legally and politically organized societies possessed of the element of coercion to provide the structures and correctives that ordinary people need to promote their well-being. Human nature and the natural moral law it embodies somehow need actual temporal legislation as an instrument that enables human beings actually to realize themselves in history.37 Augustine did speak at one point about a political subject not being obliged to obey laws that are “against the society of the city of God”;38 that is, the subject is not required to perform a sinful act even if enjoined to do so by some actual law. But what Augustine seems to have had in mind here was the Christian’s right to reject a positive law in direct violation of God’s law, best exemplified by state legislation that bears directly on the subject’s obligation to perform specific forms of peccati): Bonaventure, 2 Sent. 44.2.1 ad4; 44.2.2, cited in Markus, “Two Conceptions," p. 83. Bonaventure here is giving ultimate expression to the Augustinian concept of the non-natural character of political authority; fully aware himself of the alternative Aristotelian formulation. Bonaventure’s contemporary Thomas Aquinas was to make the Augustinian formula redundant. Another mid-thirteenth-century repetition of the Augustinian position can be seen in Richard of Middleton, 2 Sent. 44.1.2, also cited in Markus, “Two Conceptions,” p. 83, n. 7a; cf. the views of William of Ockham below. 36. See references in Chroust, “Philosophy of Law of St. Thomas Aquinas,” pp. 4-5, nn. 18-20. 37. See the many references to Augustinian texts in Chroust, “Fundamental Ideas,” PP- 73-74- nn. 83, 84. 38. Augustine Confessions 3.8. Post cites this reference from its use in Gratian’s Decretum as Conf. 2, and offers a mistaken reference: see D.8 c. 2. Post cites c.3 in Studies, p. 501, n. 15.

Early Medieval Period

33

idolatrous (non-Christian) religious worship. Certainly, he never engaged in any effort to develop a theory of limitation of political authority.39 His excursus on justice as an essential element in a true state functioned essentially only as a debating point in denying that Christianity caused the fall of Rome, rather than an element in a theory of limited government.40 Nevertheless, these efforts at defining a state in terms of justice were to find echoes in later medieval political writings, as was his repetition of the basic Ciceronian conception of justice, the Stoic formula of “giving everyone his due” that itself originated in Plato’s Republic. The channel for communication of this conception of justice to the later Middle Ages was Cicero himself, via his De inventione,41 a shorter version of Cicero’s formulation in Isidore’s Etymologies 42 and the Elementarium of Papias,43 as well as echoes of Cicero in Augustine and Ambrose. The Isidorean text was the most influential, the Etymologies being one of the most important textbook authorities in the Middle Ages, cited again and again by most medieval theologians and scholars. 39. Anton-Hermann Chroust maintains that, according to Augustine, “we should reject or ignore [sic] all those human, temporal or positive laws which do not flow directly from the lex aetema, that is, from the eternal fountainhead of all justice and lawfulness”; Chroust, “Fundamental Ideas,” p. 74. However, he gives no reference for this view, which I find too explicit and merely logically consistent with Augustine’s doctrine of eternal law. In my judgment Augustine is not so consistent when it comes to squaring the emphasis he clearly places on the right of a ruler, even a tyrant, to coerce with the view that positive law must reflect eternal law. In a later article Chroust offers references from Augustine to support the view that the edicts of a secular lawgiver must conform fully to the dictates of the lex naturalis moralis and the lex aetema in order properly to be law, but again the issue of whether or not something less than a proper positive law carries coercive legitimacy is not addressed directly: Chroust, “Philosophy of Law of St. Thomas Aquinas,” pp. 4—5, especially nn. 16, 17. Chroust acknowledges that Augustine conceded, with regret, that not all human laws reflect or encourage only the dictates of the lex aetema and lex naturalis: Chroust, “Fundamental Ideas,” p. 74. 40. Augustine offers a second definition of state in De civitate Dei 19.24, and uses it throughout the work: see nn. 63—69 below. 41. “Habitus animi communi civilitate conservata, suam virique tribuens dignita¬ tem”: Cicero De inventione 2.61. 42. Isidore Etymologiae 15.2.1: I cite references from the Oxford edition: Isidori hispalensis episcopi etymologiarum sive originum libn XX, 2 vols. (Oxford: Clarendon Press, 1910). 43. The Elementarium doctrinae rudimentum of Papias the Lombard, written about the middle of the eleventh century, served for many centuries as an encyclopedic reference manual for scores of later medieval writers. More than ninety manuscript copies are extant and it was printed first in 1476.

34

Consent, Coercion, and Limit

Later medieval legal writings take the same notion from Ulpian’s legal formulation found in the Corpus Iuris Civilis,44 Another, “forgotten,” definition of justice coined by St. Martin of Braga (d. 579), and mistakenly attributed by Paucapalea in the twelfth century to Gregory the Great, offered a more natural-sounding formulation: “an unspo¬ ken covenant of nature devised for the aid of many.”45 Isidore of Seville provided a somewhat more satisfying statement on this issue: He agreed that subjects are to obey their rulers, but was explicit in insisting that justice is an essential element in the state, and that the king must practice justice: “If not, thou shalt not be king.”4b This and many other Isidorean views, especially those concerning the nature and purpose of law, found their way directly into later medieval legal and political theory by way of the Decretum of Gradan.47 The view that humans are naturally social, while government of humans by other humans through the use of coercion is the result of moral failure, had roots in Greek as well as Christian sources. Stoic ethical theory maintained that all humans are equal in their natural state, and capable therein of living in harmony with one another rationally without the need for social structures that subordinate individuals to one another by physical force. Seneca, too, imagined a primitive state of innocence wherein humans were free from all external compulsion and government, and property and slavery were unknown. Some classical Roman writers also ascribed the development of institutions of the “law of nations” {ius gentium) to the realities of war and human avarice.4* This view was strongly reinforced by Christians, who similarly accepted the notion of basic equality among humans, and were able to “locate” the originally harmonious and rational condition of human nature in the Garden of Eden prior to the commission of the Original Sin by Adam and Eve. A chief effect of the first sin was to disorder human nature and fracture the harmony between human reason and the emotions (the medieval term “passions” to designate the emotions strikes the right chord in conveying the Christian doctrine on Original Sin). Consequently, external forms of control over human behaviour 44. Ulpian, cited in Dig. 1.1.1.2. 45. Martin of Braga, “Formula honestae vitae,” in Martini episcopi Bracarensis opera omnia 246; cf. PL 72:27. 46. Isidore Etymologiae 9.3.5. 47. See Part 2, 4, below. 48. Seneca Epistola 90; cf. Ovid Metamorphoses 1,11. 90—162, esp. 135—36; Lucan Letter /; cf. other references in Cohn, Pursuit of the Millenium, pp. 187—91, 357—58.

Early Medieval Period

35

are needed to compensate for the loss of control by reason over the emotions. According to this view, political authority and the coercion integral to its operation are legitimate as permitted, and even institut¬ ed, by God in order that rulers might maintain law, order, and justice, elements now beyond the ordinary abilities of sinful humans to practice in respect of one another. Gregory the Great reflected the same view in the sixth century,49 probably following Augustine directly. He went even further, howev¬ er, maintaining that a good ruler may be taken as a sign of his subject people being good, while an evil ruler is evidence that his subjects are themselves evil.50 Gregory thus pressed very far the view that in all his actions, evil as well as virtuous, the ruler is a representative of God Himself and an instrument of Divine Providence. Augustine was not so extreme in his own expressions; hence, the more consistent Gregorian view on the obligation to submit to political authority should not be attributed to Augustine.51 Speaking in the tradition of the Greek Fathers, St. John Chrysostom also emphasized the obligation of obedience to temporal political authority; but he implied, though he did not develop, a distinction between obedience to the office and obedience to the person holding the office.52 Lactantius maintained that social duties derive from the dignity of the Son of God, rather than from any form of social necessity;53 while St. Ambrose held that the function of the state was in conformity with the Divine Will, and that its purpose was justice and kindness.54 Isidore of Seville, whose definition of law in his Etymologies was reproduced in Gratian’s Decretum, asserted that the purpose of laws was to curb human wickedness and protect innocence.55 The view that human government is the result of sin and that the 49. Gregory Libri moralium in Job 21.15; cited in Carlyle and Carlyle, Mediaeval Political Theory, 1:127. 50. Gregory Libn moralium in Job 25.16; cf. Regulae pastorales 3.4 and Libri moralium in Job 25.24. 51. Arquilliere, L’Augustinisme politique, p. 155. Carlyle offers three reasons for the more radical Gregorian position: a deliberate effort to repudiate the anarchical tendencies existing in the early Church; the position held by the Roman emperor after Constantine’s edict making Christianity the state religion of Rome; finally, influence from the Old Testament conception of the King of Israel: Carlyle and Carlyle, Mediaeval Political Theory, 1:157—58. 52. John Chrysostom, cited in Mcllwain, Growth of Political Thought, pp. 152-53. 53. Lactantius Instituta divina 6.10. 54. Ambrose De officiis 1.22—129; cited by Post, Studies, p. 500. 55. Isidore of Seville Etymologiae 5.10; and 5, passim-, cf. Gratian D.4 C.i.

36

Consent, Coercion, and Limit

legitimacy of coercive power rests on the legitimacy of divine punish¬ ment for sin provides the standard medieval account for temporal rule until the appearance of Aristotle’s Politics in the mid-thirteenth century. Only then do we find currency given to the view that political society is natural as the means of fulfilling the naturally imperfect character of the individual human, who can neither survive physically nor fully develop personally alone. The so-called Stoic-ChristianAugustinian doctrine, whose most influential exponent was Augustine himself, then gave way among later medieval thinkers to the more rigorous formulations of Aristotelianism, a fact that has led some interpreters of the Middle Ages to juxtapose the earlier and later medieval theories concerning the character of temporal rule in terms of the distinction between the view that human government is conventional (the earlier view) and the notion that it is natural.5*3 The introduction of Aristotle’s Politics did produce something of a revolution in political thinking in western Europe after its translation into Latin about 1260; but it is a serious oversimplification to draw too firm a contrast between earlier and later medieval views on the character of temporal rule in terms of what is “natural.” From earliest times Christian writers accepted temporal rule as legitimate and normal; and however much their account of it was construed in terms of sin and punishment, none of them referred to it as “conventional” any more than they denied its necessity. Further, no articulation of the Christian theology of Original Sin held that its consequences involved a change in the “nature” of human beings. The orthodox Christian doctrine of original sin consistently maintained that while human nature was wounded, perverted, or somehow rendered inharmonious by the sin of Adam and Eve, it was not substantially changed into a different nature. After the Fall, Adam and Eve were not characterized as unnatural or conventional, whatever these terms might mean; they were viewed as possessing the same human nature that was theirs before their transgression, albeit distorted, wounded, perverted. Their sinful condition after the Fall was seen as a debilitated one rather than 56. See Post, Studies, pp. 494—513; Markus, “Two Conceptions.” p. 337A. The distinction between “natural” and “conventional” originates in social contract theory (especially as formulated by Rousseau in the Contrat social), according to which humans form political society by contractual consent: society and its authority come into being by “convention,” conventional agreement. The distinction here between the state of nature (the “natural”) and the state of society (the “conventional”) is thus clear. Equally clear, however, is its inapplicability to medieval thought that did not exhibit the social contract frame of reference.

Early Medieval Period

37

as changed substantially, as displaying features needing correctives to compensate for the debilitation and to restore so far as possible the balance and order among the elements that constituted it. A political theory expressing this theological doctrine directly perceives political authority as unnecessary in circumstances or condi¬ tions where human nature functions perfectly and consistently with the proper ordering of its elements—conditions that are contrary to present circumstances and that only obtained for the natural state of Adam and Eve in the Garden of Eden. Coercive political authority is certainly necessary in the present conditions of “sinful” human nature, however, where all humans suffer from the harmful effects of the Original Sin. Early Christians, including Augustine, accepted the realities of human government and organization as perfectly legiti¬ mate, necessary, and useful. The advantages of living in some form of organized society are virtually self-evident, and so they seemed to both early and later medieval Christian thinkers, whether or not they were familiar with the first chapters of Aristotle’s Politics. Lack of acquaint¬ ance with the Stagirite’s views on the nature of polity, as well as lack of express interest in the subject as such, however, probably contributed greatly to the failure by Augustine and those who followed his views to formulate an adequate and comprehensive theory of polity. Augustine accepted, and even argued for, the legitimacy of political organization. He notes that God (the heavenly city) makes use of the “peace” that is the aim of temporal society for His own purposes, and seeks the merging of human wills that is useful in achieving mortal human peace.57 He even describes human society in this world in terms of peace, defining a state (or city) as “a multitude of reasonable beings voluntarily associated in the furtherance of common interests.”58 Significantly, he again speaks clearly in terms that accept the normal character of political society and government, and identifies what came to be a standard reference point in later medieval political theory, the point just noted that the purpose of political organization and government is peace. Augustine notes specifically that earthly peace is conducive to the attainment of heavenly, eternal peace, and states that this is why St. Paul advised Christians to be obedient to temporal masters; he also asks the Church to pray for kings and other high persons, citing 1 Timothy 2:2.59

57. Augustine De civitate Dei 19.17. 58. Augustine De civitate Dei 19.24; cf. Epistola 138 2; Epistola 133 3 59. Augustine De civitate Dei 19.26.

38

Consent, Coercion, and Limit \

Augustine’s conception of “city” and the basis for his distinction between its heavenly and earthly forms is 'theological rather than philosophical, however, and involves the Christian doctrine of predes¬ tination.60 As noted earlier, accordingly, there is no direct correspon¬ dence between his two cities and the distinction between spiritual and temporal spheres of authority. The theological basis for Augustine’s two cities is itself “spiritual,” so that neither of them has a direct correspondence with the order of the temporal. The city of God is constituted of those “citizens” chosen by God (via predestination) to fulfill themselves with Him eternally in heaven: some have achieved this goal already; others living at present in the world in all the various forms of temporal jurisdiction will achieve it at their death; while still others yet unborn are destined even later to become citizens of the heavenly kingdom. The earthly city, however, is the kingdom of Satan: its citizenry are those humans predestined to Hell from all eternity, some already dead and others at present alive or as yet unborn, but all having no specific connection with any particular temporal polity. Here, fundamentally, is the explanation for insisting that Augustine’s City of God cannot be considered a treatise on political theory, or even as containing directly the basic elements for this form of work. As noted before, its author was not concerned primarily with issues of political theory, even though his magnum opus contains elements for one and set something of a style for later medieval repetition of Augustinian views that did impact on politics. Another element in Augustine’s doctrine that became deeply woven into the political thought of the later medieval period, and had far-reaching consequences thereby, was his effort to define the state. Augustine took his cue here from a reading of Cicero’s De re publica,61 and with Cicero he maintained the traditional position that the purpose 60. A careful explanation of Augustine’s doctrine relating the concept of Christian predestination to his definitions of the two cities is found in Gilson’s foreword to the English translation of City of God, in Fathers of the Church series, 8, pp. lv-lxxxi. Gilby offers a telling comment on the restrictive character of the “two cities” concept as a basis for political theory, a restriction to which Augustine himself was much too astute to fall victim; Gilby also notes the later medieval introduction of a third city, in a text relating to the Lateran Council of 1179; cf. Congar, “Maitre Ruhn,” cited in Gilby, Political Thought of Thomas Aquinas, p. xxvi, n. 1. 61. Cicero’s definition, as quoted by Augustine in De civitate Dei, 19.21, was Populum esse definivit coetum multitudinis, juris consensu et utilitatis commumone sociatum. The Ciceronian definition must be from a portion of the dialogue that is lost. But see Cicero De re publica 2.42. Cf. Carlyle and Carlyle, Mediaeval Political Theory, 114-8.

Early Medieval Period

39

for which political society functioned was the common good.62 Howev¬ er, his formulation was dictated from the beginning by the overall intention behind the composition of the City of God. This was to offer a sustained and unassailable rejection of the thesis that the Christian church was responsible in any way for the decadence and weakness that had led to the decline of the Roman Empire. Augustine’s counterclaim is that the Empire had been responsible for its own enfeebled condition, that its political, social, and moral degeneracy was the result of the false and pernicious attitudes on which it had been based.63 Warming to this subject Augustine asserts that, in the final analysis, one had to deny that the Roman Empire was even entitled to call itself a state.64 To achieve this self-serving conclusion he employs Cicero’s definition of a state, according to which justice is a necessary feature of a sound political community,65 and offers the following argument to show that the Empire failed to meet the Ciceronian criterion: Justice not based on Christian law as well as on the law of nature is incomplete; hence a state not founded on Christian law is an incomplete embodi¬ ment of its necessary feature of justice. Like all earlier and even all contemporary political organizations, Rome was not based on Chris¬ tian law, and hence was not a true state.66 Gregory the Great took this Augustinian view a further logical step several centuries later, when he made the inference that the obligation of securing divine justice upon earth rested ultimately on no one but the pope as Christ’s vicar in this world.67 From this formulation it was only a short step to the later claim by Innocent IV that the pope is the index ordinanus of all humans,66 a fundamental claim giving rise to much of the thirteenth-century struggle between church and state.69 There is a reference in the Ciceronian definition of the state to 62. Augustine De civitate Dei 19.21; cf. 2.21, John of Salibury reiterated the same point, of course, as did Thomas Aquinas and all other medieval political theorists, those of the latter part of the thirteenth century and later being able to reinforce this principle even more strongly by reference to Aristotle’s Politics. Cf. Eschmann, “Thomistic Glossary”; Lewis, "Organic Tendencies.” 63. Augustine De civitate Dei 2.22. 64. 65. 66. 67.

Ibid., 19.21. See n. 60 above. Augustine De civitate Dei 19.21. Mcllwain, Growth of Political Thought, p. 160.

68. Ibid. 69. Augustine’s final position on the definition of state .simply rejects the original definition as too narrow: De civitate Dei 19.24.

4°

Consent, Coercion, and Limit \

“consent” by the people to the law that gives structure to the political community as it aims at the essential purpose of achievingjustice;70 and Augustine reiterates this reference to consent in his own position.71 But the original Ciceronian text is itself oblique and lapidary, obviously not containing anything of the modern notion of consent as designating a procedure for validating political authority. Augustine was even less concerned with any such feature, and his handling of the Ciceronian definition was perceived to be less than adequate by later Christian writers. Isidore of Seville saw fit to reorganize Augustine’s wording for the definitions of both state and law, thereby producing a better co-ordination between Ciceronian and Christian views.72 These Isidorean definitions enjoyed great currency in the technical writings of the later medieval period, having been preferred by Gratian.73 Isidore, not Augustine, set the form of the definitions for these important concepts in medieval political theory, a form that explicitly took juridical and sociological elements into account,74 elements Augustine himself acknowledged as significant, but reference to which did not appear specifically in his definitional statements. Augustine had second thoughts about the use he had made of the Ciceronian definition of state as necessarily involving the virtue of justice. He returned to this issue much later in the City of God, and acknowledged the narrowness with which he had applied Cicero’s formulation. He then amended his position, not to say rejected it completely; he preferred a second definition of temporal society according to which its essential feature was nothing more than common agreement among its members with regard to the purpose of their coming together.75 The new definition enabled Augustine to accept virtually any grouping of humans under any common purpose as a state (or city), thereby justifying his own designation of all the humans predestined to hell because committed commonly to the cause of the Evil One as “citizens” of a state. The latitude to the new 70. See n. 61 above. Cf. Cicero De re public a 1.25; 3.5. Cicero expressed a theory of government based on consent: De re publica 3.13.23 and De officiis 1.17.53. See Gough, Social Contract, p. 19 and nn. 3 and 4. 71. Augustine De civitate Dei 19.21 and 24. 72. Isidore Etymologiae 9.4.5; 5.3.4. 73. Gratian, D.4 c.i and c.2; D.i c.1-12; D.2 c.2. 74. A typical illustration is found in Thomas Aquinas’s treatise on law, where he asks specifically whether or not the Isidorean definition of positive law is appropriate: S.T. 1-2-95-375. Augustine De civitate Dei 19.24. Cf. Letters 138.2.10, 155.3.9

Early Medieval Period

41

Augustinian meaning for state is sufficiently broad to include all actually existing states, as well as past and future historical polities, even those whose rulers are tyrants who decline to limit their power to the rules of God’s law. By using so broad and loose a definition Augustine offers further evidence here that he was not seriously interested in developing a political theory as such. It also indicates that the later extension of doctrine by Gregory the Great just noted, while perhaps logically consistent with certain Augustinian remarks, exten¬ ded their meaning beyond the point to which Augustine himself was prepared to go. Augustine, then, presents two conflicting definitions of the state, one identifying justice as its essential feature, the other citing only a shared common purpose. And while his preference favoured the latter, he does not reconcile it with the first, thereby failing to provide either an adequate concept of justice or a satisfactory view concerning its place in a polity. While thus offering an incomplete and only indirect theory of polity, Augustine does accept the concept of there being a good for the state, political society, as a whole. Again he follows Cicero in expressing the general Roman view that individual interests are subordinate to those of the polity itself.76 Ulpian’s famous formulation on the point held that public law dealt with the very status of the Roman state, and with the public authorities and sacred matters necessary for the public welfare: “Public law pertains to the Roman state as such ... Some things are for public use and others for private use. Public law has to do with matters sacred, priestly, and magisterial.”77 Augustine clearly subscribed to the same view, that the supremacy of justice had as its goal and purpose the attainment of order and peace that gave expression to the ratio societatis. St. Ambrose expressed the same view somewhat later: the ratio societatis, justice, is to be associated with the public law pertaining to the duties of magistrates in adminis¬ tering the public community for the welfare of all.78 And it was this Augustinian-Ambrosian theory of justice as the normal ratio societatis, combined with the principles from Roman law concerning the power 76. Cicero De oratore, 1.46.201. However, Cicero could be cynical also regarding civil authority appealing to the general interest: see De officiis 3.11; cf. Post, Studies, pp. 254-55. 77. “Publicum ius est quod ad statum rei Romanae spectat ... sunt enim quaedam publice utilia, quaedam privatem, publicum ius in sacris, in sacerdotibus, in magistratibus consisted’: Dig. 1.1.1.2. 78. Ambrose De officiis 1.28 (PL 16.61).

42

Consent, Coercion, and Limit \

of the prince and its relation to the common or public utility, that encouraged John of Salisbury to write his small treatise on “reason of state.”79 5.

SUMMARY

The early period of Christian thought and history of politics may be reviewed at this point in terms of our interest in the concepts of consent, coercion, and limit, keeping in mind the restricted nature of the documentary and doctrinal background known to those whose views are under consideration. Thus, for example, it must be remem¬ bered that Aristotle’s Politics, though written in the mid-fourth cen¬ tury b.c., was unknown directly either to later Roman writers or to Christians of the early Christian period; this essential document in the history of western political thought came into general circulation in western European intellectual circles only in the mid-thirteenth cen¬ tury.80 Plato, too, was known only imperfectly. Roman moralists and political writers such as Cicero and Seneca were generally aware of the doctrines of “Platonism,” as were Christian authors such as Justin Martyr and Augustine. But their knowledge was quite imperfect, and did not extend to direct access to the major Platonic writings in ethics and political theory: the Republic and the Laws do not seem to have been known directly to either the Roman or the early Christian in¬ tellectual tradition.8* What can be learned of the Christian attitude towards politics from the writings of early Christianity shows no express concern at all with the issue of consent as a feature of either the theory or the practise of political authority. The biblical account of how the Jewish people received their first king, Saul, does refer to his having been acclaimed by all the people, and to the employment of a lottery process by which the candidate for monarchical office was identified to the people. Yet the context in which these elements occur shows that the lottery process was not a means for making the position of political leadership genu¬ inely open to a group of possible candidates; it was simply the proce79. Post uses the expression “small treatise on reason of state” to characterize a portion of John of Salisbury’s P olicraticus: Post, Studies, p. 259; cf. esp. nn. 32—34. See other references to medieval use of the concept “reason of state” in Post, Studies, pp.

257-5880. See Muckle, “Greek Works, Part I" and “Continuation.” 81. Ibid. Cf. van Steenberghen, Aristotle in the West.

Early Medieval Period

43

dure used by human agency, but presumably controlled by the divinity, through which God made known the person He had chosen for this role. Clearly God chose Saul to be king of the Jews, and the Israelites recognized clearly and accepted that the choice lay with God and not themselves. Their consent was a form of agreement by way of accep¬ tance of an action already taken by their God. Against such a back¬ ground the element of popular acclaim cannot be construed as any¬ thing more than post factum and pro forma acknowledgment of a decision already made. There is no trace here of the notion that the people to be governed have any direct jurisdiction or right of prior determination in the choice of ruler. Consent in this latter sense was not part of the Jewish vocabulary of governance. The element of coercion, however, was present in the Jewish system of politics, though its articulation is not frequently explicit. God’s chosen ruler for the Israelites was viewed as an instrument of God’s law and of His vengeance; it was the ruler’s responsibility to uphold and enforce the divine law on the Chosen People, and this he did through his kingly office. Unquestionably, the king possessed the power needed to accomplish this task. The only qualification or reservation placed on this power had to do with the king’s willingness to enforce God’s law on His people, rather than with any ability or right to do so. The feature of limit is also clearly to be found in the Old Testament account of the exercise of monarchical rule, at least by implication. The king’s authority extended to the interpretation and enforcement of God’s law, and only to that limit. A ruler who transgressed the limits of the law laid down by God for His Chosen People did wrong and exceeded his divine mandate. When this occurred, such a ruler could be deprived of his political authority, but apparently only by God Himself. This actually happened in the case of Saul, the first Jewish king, who was said to have been deprived of his royal office during his own lifetime by God. The mechanics of how this was done are obscure, however, and there seems to have been no formal act of deposition nor any immediate consequences of the act of divine revocation of au¬ thority: God informed Samuel that Saul was no longer king, but the Jewish people as a whole apparently were not informed of the deposi¬ tion, and Saul continued in office until his death. Only then did the second divinely appointed monarch, David, actually succeed to office, even though his selection by God had taken place earlier. It must be noted, however, that no completely certain and accurate account of either the theory or the practice of the Jewish monarchy can be de-

44

Consent, Coercion, and Limit \

rived from the Old Testament. Such an account was simply not ol direct or serious interest to the writers of the Jewish Scripture. Another illustration of the same point, which involves an issue that emerged in later medieval theories of government, is the absence of any reference to the possibility of deposing an evil or tyrannical ruler. While it is clear that a Jewish ruler was limited in the legitimate exercise of authority to enforcing laws provided by God, there seems to have been no parallel expression of the limits of the obligation to obey the king. Nor was there any expression given to the possibility of it being legitimate for any member(s) of the community to challenge or depose an unjust ruler. Like the selection of the king, this matter seems to have been left directly to God; the Jewish people were to have faith that their Lord would provide all things needful, and would deal with His people properly, giving them a king as and when they required one, and removing him as and when this might be necessary. 4 he disposition of events was “left to heaven”; and the actual course of events was explicable post factum according to this principle.82 Neither does the concept of consent appear explicitly in any of the formally expressed political views of early Christian thinkers, at least not in what they say concerning the exercise of temporal political authority—not even in respect of what can be called pro forma consent by way of the popular acclamation of temporal rulers. This should not be surprising. The earliest Christians who were Jews were, and recognized themselves to be, members of a conquered people; accordingly, they could not be expected to advance any claims for rights in the choice of their political masters. As well, even Christians like St. Paul who were Roman citizens did not operate in a context 82. It may be argued that some ambiguity exists in the Old Testament text regarding the original selection of the first Israelite monarch by lot, and that this process could have been perceived by the people as genuinely open to all, “democratic” in the way that choice of magistrates by lot in democratic Greek city-states was. I interpret the texts differently, however; for it seems clear that, at least for the authors of the Scripture here, the description of events is being offered from the “inside,” by persons knowing what actually happened; and according to this view the choice of ruler was not genuinely open when the casting of lots occurred. Rather, the outcome already had been determined by God. The only ambiguity, then, has to do with whether the people saw the lottery as nothing more than an identification process or as genuinely determining the choice. It does not seem that the notion “anyone will do (to serve as king)” was an operative principle. John of Paris made precisely this remark in commenting on how the Israelites came by their first king: “God did not commit to them the right of choice ... rather He reserved it to Himself”: De potestate regali 19 ad 35.

Early Medieval Period

45

where they saw as relevant the notion of exercising actual and deliberate consent regarding the rulers of the Roman empire. What was relevant was the obligation to obey; and naturally enough this was where the early Christians placed their emphasis in expressing views on the nature of polity. There is no question, then, about acknowledging and accepting the reality and legitimacy of the coercive power of the state in exacting obedience from its members. The early Christians, as we have seen, were enjoined to obedience, on moral and religious grounds. But within limits. The temporal ruler was to be obeyed as long as his orders did not impose on Christians actions forbidden by the divine authority to which they owed a higher allegiance and superior obligation, the authority of God and His laws. There was never any doubt from earliest times that the obligation Christians accepted towards any actual political authority, however stringently this obligation might be ex¬ pressed by their own religious leaders (many of whom explicitly insisted that it extended to obedience towards evil rulers and tyrants), did not extend to the requirement of acting against the higher authority of their God. The authority of an earthly ruler was limited to “what was Caesar’s”; what was God’s (law) was not Caesar’s. That simple distinction at least was clear, though its specifications were not spelled out; and many early Christians accepted the distinction at the cost of their own lives through religious martyrdom. Not too much should be made, however, of there being necessarily a conscious awareness among early Christians of the abstract political concept of limit. The early Christian martyrs were not engaged in the formulation of political theory. The strength of their religious commit¬ ment, rather, gave practical expression to the principle that there are limits beyond which political authority may not legitimately enforce its authority, as is the case whenever a citizen decides not to obey a law. Of course, a person refusing to obey may intend simply to disobey rather than question the law’s legitimacy. The issue, however, is that anyone disobeying a law on the grounds that a law is not legitimate invokes the principle of limit, whether or not the allegation of illegitimacy is correct. The Augustinian view of polity offers another instance of Christian thought where the element of consent attracts no specific interest at all, while the concepts of coercion and limit function generally in ways identical to those already seen in earlier Christian writers. Augustine did not enquire about what role, if any, the people as a whole are to play

Consent, Coercion, and Limit \

46

in the establishment or exercise of political authority; its reality seems to have been accepted by him as a given. Christians, and by extension presumably all persons, are obliged to obey existing political authority, even in circumstances where this authority may be evil or tyrannical: political authority derives from God Himself, and its coercive applica¬ tion as well as its reality are justifiable in terms of using such physical force as is required to direct the sinful human condition into proper behaviour. Again, a limit is implied on the legitimate exercise of political authority, a limit restricting temporal authority to an arena that does not conflict with the laws of God. But Augustine offers no encouragement, nor even much solace, to those who find themselves in a situation where political authority acts beyond its legitimate limits.83 The temporal role for a Christian is simply to suffer evil and tyranny where it occurs, recognizing that the imposition of human authority is a consequence of sin and represents suitable punishment from God for human transgressions. Augustine does speak in one place about popular acclamation for political authority; but the reference is a passing one and the concept he had in mind seems more ritualistic than anything else.84 6.

CONSENT IN EARLY CHURCH PRACTICES

One aspect of early Christian life in which the element of popular consent does seem to have functioned in practice was in the selection in Apostolic times of leaders in the various Christian communities. Though the evidence is scanty and provides no theoretical basis for the practice described, it seems that in the first Christian communities persons were selected for the responsibilities of conducting religious services and affairs by a process involving the total community. Several texts of the Acts of the Apostles speak of the Christian community as a whole being involved in a type of decision making: Acts 1:23—26, 6:5, 11:2, 15:4, and 22; and several kinds of activity are mentioned. 1 Cor. 49:3 also mentions that Clement of Rome approved this Apostolic 83. Carlyle was sceptical about how influential was Augustine’s view that implied a lack of any practical limit on the exercise of political authority, but I think his interpretation here is a bit too reverent: Carlyle and Carlyle, Mediaeval Political Theory, 1:169. 84. Augustine defines a society ultimately in terms of the people being “voluntarily associated:” De civitate Dei 19.24; but nowhere does he attempt to describe how this voluntariness is to be given expression.

Early Medieval Period

47

practice when he spoke of the Apostles and other important early Christian leaders as having placed persons in authoritative positions “with the approval of the whole Church.”85 Hippolytus reflected the same attitude in the period after Clement;86 and the era from the second through the fourth centuries shows several instances of individual church communities refusing to be administered by a bishop other than the person accepted by them. In a text that has had a long and impressive history, Pope Celestine I promulgated the rule at the beginning of the fifth century that “ no one should be a bishop unless accepted (invitus),”H' a directive that was adopted by a Church council in Orleans in 549, and by the Council of Paris of 557.88 There is similar evidence from the early Christian centuries of some lay participation in Church councils and other organs of general Church governance, although the details are sketchy concerning what actual role the laity played, and no evidence exists for any theory justifying such activities.89 Considerable caution must be used, then, in construing these data as bearing implications for political theory, even a theory of ecclesiastical polity. What was likely being reflected in the New Testament sources that mention community (popular) participation in the selection of spiritual leaders, as well as in the similar examples from the early Christian centuries, is informality in the procedure for choosing a leader rather than a conscious determination to use a specific mechanism guarantee¬ ing an explicit and essential role to the people of the community as a whole. Marsilius of Padua, whose views on the requirement of popular consent have earned him the reputation in some quarters of being a late-medieval forerunner of democratic theory, was positively cynical in his interpretation of instances of popular rule in the early Christian community. He speculated that the early Christian churches may have been so bereft of qualified persons either to select a proper minister or 85. A recent but brief summary of the element of communal consensus in the Apostolic Church is Schnachenburg, “Community Co-operation in New Testament.” See also in the same journal an article on the election of bishops in the early Church: Legrand, “Theology and Election of Bishops.” 86. Hippolytus, cited in Congar, “Quod omnes tangit,” p. 225. This article is one of the most important studies of the Roman legal dictum quod omnes tangit (q 0 t): see Part 3, ia below. 87. “Nullus invitis detur episcopus. Cleri, plebis et ordinis consensus ac desiderium requiratur”: Celestine I Epistolae 4.5, cited in Gratian, D.61 c.13 and D.63 c.26. 88. Cited in Congar, “Quod omnes tangit,” p. 226. 89. Ibid.

Consent, Coercion, and Limit \

48

actually to fill the leadership role that it was necessary to broaden the base for selection as widely as possible in order to get maximum advantage from sound judgment wherever it might be found.9 Whatever the explanation for these early examples of popular involvement in decision making in early Christian communities, and whatever form they might have taken, knowledge of the instances themselves was not lost. And their significance for later centuries was considerable. 7.

THE EARLY MEDIEVAL CHRISTIAN COMMUNITY

Sixth-century views and practices concerning the function of the Christian community as a whole in the appointment of a bishop consciously reflected the practices of Apostolic times as they were understood. Selection of bishops in the early medieval period, at least in parts of Italy, also involved an element of popular choice or consent. As with the procedure of earlier times, what seems to have been present here was an informality that probably precluded serious formal deliberation; it is even more probable that no particular interest was taken in the development of a theory of ecclesiastical polity. The element of popular participation in episcopal election, nonetheless, was not only sanctioned, it was directly encouraged. The fifth-century letter of Celestine I already mentioned had stipulated that no bishop ought to be given to those unwilling to receive him. Later, Pope Leo I wrote to Rusticus, Bishop of Narbonne, that “no one ought to be considered a bishop unless he had been elected by the clergy, accepted by the people, and consecrated by his co-provincials with the co-operation of the metropolitan.”91 These two texts warrant careful consideration, if for no other reason than that they became important elements in later medieval formulation of the canonical procedure for appointing bishops. Celestine’s single remark clearly does not stipulate a specific con¬ senting function for the laity of a diocese; nor is there any suggestion that the general “willingness to receive” must be expressed in any 90. Marsilius of Padua Defensor pacis 1.3.4; 2.17.7. 91. Leo I Epistolae 167, cited in Gratian, D.62 c. 1. The Decretum text shows a slightly different wording from the original, which reads: “nulla ratio sinit ut inter episcopos habeatur qui nec a clericis sunt electi; nec a plebibus sunt expetiti, nec a provincialibus episcopis cum metropolitani iudicia consecrato. Cf. Benson, Bishop-Elect, pp. 23—34; Chodorow, Christian Political Theory, pp. 199—205.

Early Medieval Period

49

formal way or necessarily prior to the bishop being placed in office. It is not even clear that “those who must be willing to receive their bishop” include the laity as distinct from the clergy, although it is certainly plausible to assume that this is so. The letter of Leo I to Rusticus is more explicit, but again it is far from comprehensive regarding either theory or procedure. 4 he clergy of the diocese as a whole are to be involved in the selection of their bishop, but the procedure of involvement is not spelled out. The diocesan laity as a whole are also to be involved, though how this is to be done is even less clearly explained. Presuma¬ bly, the selection is actively performed by the clergy, and is conducted before the candidate for episcopal office is named; and he is actually chosen by the clergy as a whole (“elected by the clergy”). The people’s activity of “accepting” presumably also occurs before the successful candidate assumes office; but the distinction between “electing” and “accepting” indicates a difference in function between clergy and laity, and as well seems to provide a less well-defined role for the lay people. The wording of these two texts does not make it possible to derive any more information on the issue.92 Documents of any kind devoted specifically to the nature of politics and society are rare in the period from the fifth to the eleventh century, a reflection of the fact that literature of any kind was rare in this politically unstable and frequently chaotic period in western Europe; it reflects as well the fact that the theory of politics itself was not a subject of great concern. The few elements produced were almost all of the “mirror for princes” (speculum principum) genre, handbooks of largely moral advice to rulers about how to conduct themselves in office. This type of document illustrates an almost complete absence of genuine theorizing about the nature of government, as well as a common and virtually unqualified acceptance of political rulers as necessary and legitimate features of human society. Beyond this the “mirrors” did little more than “reflect” the character and qualities a ruler should possess, rather than the structure and elements appropriate for a political society. They stressed the moral qualities a ruler must exhibit, the virtues he ought to possess or acquire, and the corresponding vices to be avoided or eliminated. No intellectual tradition existed in the Dark Ages that devoted attention to the nature and forms of political society. As mentioned earlier, the fundamental political writings of 92. See the later use made of this text, and of the Leonine text as well, by Gratian, nn. 87, 91 above.

f^o

Consent, Coercion, and Limit \

Plato and Aristotle were unknown directly, and their existnce had not yet left any significant trace on Christian thought. More importantly, however, the emperor Constantine’s decision in the fourth century to make Christianity the state religion of the Roman Empire had resulted, though not immediately, in a virtual identification between Christian church and state, or at least in a confusion of the spiritual and temporal spheres.93 The formality of the distinction remained nonetheless, with continu¬ ing recognition of the Gospel admonition to distinguish between God and Caesar. In fact, one of the most widely cited documents in the later medieval church / state controversy had its origins at this time: the late fifth-century letter of Pope Gelasius to Anastasius, outlining a doctrine of the two spheres.94 However, it became more and more difficult to distinguish the two spheres in practice. Christianity spread institution¬ ally throughout the geographical confines of the Empire in some sense because of its official status, and did so in a way that saw its own administrative framework usually paralleling the old Imperial political structure. When the Empire as a political reality ultimately collapsed in western Europe the administrative structure of the Church remained, and often was expected to serve needed political as well as ecclesiastical purposes; and in fact it frequently did so. Furthermore, collapse of the Empire had meant collapse as well of the cultural, intellectual, and educational forms and institutions in virtually the whole of western Europe except Ireland. Little remained as a basis on which to rest serious intellectual activity of any kind. The “mirror for princes” type of political treatise had its origins in the sixth century with Gregory the Great, and took its form from its prototype, Gregory’s Pastoral Care.95 This work, in turn, was patterned after the De officiis of Cicero,96 and was a handbook for the moral guidance of clerics in the exercise of their duties. Such was the basic material that was transmuted into later directives for the exercise of temporal political authority, a further illustration of the intellectual

93. See Histoire de leglise, ed. Fliche and Martin, 3. 94. Gelasius Ad Anastasiurrv, English translation, in part, in Tierney, Crisis of Church and State, pp. 8—9. 95. Gregory the Great, The Pastoral Care, ed. Ingvar Carlson (Stockholm, Almquist 8c Wiksell, 1975). There were two earlier Christian texts similar to Gregory’s Liber regulae

pastoralis: the Second Oration of Gregory Nazianzanus, with which Gregory was familiar, and the De sacerdotis of St. John Chrysostom. 96. Cicero De officiis, trans. Walter Miller (Cambridge: Harvard University Press, 1961).

Early Medieval Period

51

simplicities of the period. Leadership functions in both church and state were perceived alike in one-dimensional terms: success in the exercise of authority, whether ecclesiastical or temporal, required that the ruler be possessed of and exercise the appropriate moral virtues. The attitude embodied in these political treatises did little more than display the contrast between the responsibilities of leadership and those of obedience in any political context.97 The function of a ruler was simply to rule, for which certain moral qualities of character were necessary; the function of others was to obey. The qualities necessary in a ruler, as in a subject, were moral, internal. If he possessed these, his behaviour in office would be right and good, by definition, so to speak; similarly, the corresponding actions of his subjects would be proper inasmuch as they reflected the requisite virtues of obedience. Such a view does not even raise the question of the need or utility for any corporate constitutional power to limit or regulate the ruler from “outside.” No emphasis is placed on political structures or forms of political expression, no interest expressed in setting down conditions under which authority is to be recognized and exercised.98 However, one signal exception can be seen to this generalization: the exercise of authority must be limited by law, power must always be used under the law. This feature is always found in the speculum texts either explicitly or implicitly; and it survived them by being transmitted through them, and was expanded on in later centuries when intellectu¬ al life and expression concerning a theory of polity became suitably sophisticated once again.99 8.

THE POLITY OF THE PRE-CHRISTIAN TRIBES

Reference has been made already to the connection between barbarian tribal societies and the search for the origins of modern European 97. This genre of literary effort had a lengthy history in the Middle Ages; its most popular example was the enormously successful late-thirteenth-century exemplar, the De regimine principum of Aegidius of Rome. 98. Whatever the poverty of data in the literary tradition, formal coronation and consecration procedures existed in various western European Kingdoms: among the Britons in the sixth century, the Visigoths in the seventh, and the Anglo-Saxons and Franks in the eighth. See Kern, Kingship and Law, pp. 34-50. 99. The feature of limitation by law is the single concept emphasized by Professor Cam in her ultimate assessment of the value of the British parliamentary system of democracy, whose genuine origins she found in the thirteenth century: the conception of popular rights, the rights of the people, protected by limitations on the authority of the monarch: Cam, Law-Finders.

52

Consent, Coercion, and Limit \

democracy. Of particular interest is the tradition among Germanic, Anglo Saxon, and Celtic tribes of choosing a leader or king. Particular impetus towards examining the data of tribal and folk ways among the “barbarians” of pre-Christian Europe developed from the perception that the medieval Christian churchman’s attitude towards the exercise of authority tended to see it as essentially God-given, originating in the divine. Such a perception among many early modern constitutional historians of western Europe led them to look to the “barbarian” societies for the source of an alternative attitude. This impetus has been encouraged and accentuated in more recent times through the widespread circulation and influence of an interpretation of medieval political theory and history advanced some years ago by Walter Ullmann.100 According to this interpretation, medieval political theory was dominated and controlled by two largely antithetical views con¬ cerning the nature of authority: a “hierarchical or downward” view, according to which authority resides ultimately in the divinity and flows downward from God to the humans to whom God dispenses it; and a “popular or upward” view, wherein authority is considered to reside in the people as a communal entity, and to rise from the people to those whom they designate to exercise it. Like most intellectual tools devised to control and interpret a vast and varying array of data, the Ullmann thesis reflected a serious oversimplification, attributing at least by implication too little to the Christian contribution to medieval political thinking in respect of the notion of popular consent, and too much in this respect to preChristian tribal attitudes and values. There does seem to have been a 100. Ullmann has made regular and extensive use of the ascending and descending thesis in interpreting medieval political theories and practices since the late 1950s; see especially his Principles of Government, 3rd, ed., pp. 19-26, and p. 20, n. 1; cf. Wilks, Problem of Sovereignty, pp. 15-63. Cf. the review of Ullmann, Principles of Government by Kantorowicz: Speculum 39 (1964): 344-51. The most interesting application of the Ullmann thesis for our purpose is in his article “Bible and Principles of Government'’: see n. 3 above. Unquestionably the biblical sources were very influential on medieval political thinking, and unquestionably they did reflect the descending theme. What needs to be acknowledged is that these same sources also reflect, though much less forcibly, elements of the ascending theme. It is, therefore, an error to locate these latter elements only in non-Christian and non-Roman sources. Gaudemet repeats the basic contention that the Germanic tribes reflected a popular element in their political structure, at least in the sense that they practised a form of popular consent that was expressed in a physical rather than an abstract form (= actual individuals actually doing something). However, he speaks of Germanic traditions strengthening the canonical principle of unanimity: Gaudemet, “Unanimite et majorite", p. 155.

Early Medieval Period

53

feature of popular involvement in the selection of leaders among the early Germanic and Celtic tribes, as far as it is possible to gain a coherent perspective on this subject from available evidence.101 At least in theory it seems that the chief men or nobles of the tribe were expected in some way to consent to the elevation of their principal leader. But available data do not make it possible, and there are grounds for scepticism about whether it will ever be possible, to formulate a fully defensible theory concerning the origins of Germanic kingship as early as the hrst century, b.c. Earlier modern judgments on the nature of kingship among the Germanic tribes rested largely on evidence from Roman sources, principally the Germania of Tacitus;102 but this is now recognized to be an unsafe guide, at least for the period after which Tacitus wrote. And more recent scholarship also has produced some scepticism concern¬ ing Tacitus’s distinction between the Germanic and Celtic tribes, a distinction he based on geographical rather than ethnographic consid¬ erations.103 It can be assumed that Germanic tribal kings existed at the time of Tacitus—the Germania dates from ca. a.d. 98. But even as late as the fourth and fifth centuries kingship was not an essential part of Germanic society; some Germanic tribes possessed kings by this time, some not.104 Further, in a way somehow akin to the Christian notion of the ruler as the anointed of God, and certainly in a manner sufficiently akin to serve as ground for rejecting too straightforward a contrast between the Christian and the pre-Christian tribal traditions on this point, the Celtic and Germanic tribes of early medieval western Europe viewed their leaders as an embodiment or personification of the tribal divinity, reflecting a mystical, religious contact with the diety who controlled the tribal destiny. So viewed, the tribal leader possessed certain quasi-divine qualities; and this was why he was acceptable and accepted as a leader.105 Consequently, his designation and acceptance as leader by the community as a whole was not an exercise in popular sovereignty in a modern sense, any more than was the rule of a 101. Substantial contributions to the study of the early tribes of western Europe can be found in Binckley, Celtic and Anglo-Saxon Kingship', Chaney, Cult of Kingship', Ejerfeldt, “Myths of the State”; Wood, Law and Society; Wallace-EIadrill, Early Germanic Kingship; Long-haired Kings; and Wood, “Kings, Kingdoms and Consent.” 102. Tacitus Germania, in Dialogues, Agricola, Germania. 103. Wallace-EIadrill, Early Germanic Kingship, pp. 2, 4, n. 11. 104. Wallace-Hadrill, Early Germanic Kingship, p. 8. 105. Chaney, Cult of Kingship, pp. 16—17.

54

Consent, Coercion, and Limit

medieval European king who was solemnly assumed or declared by political theorists of the time to be exercising authority with the people’s consent. Rather, it was probably little more than a kind of popular acclamation for a special individual perceived as divinely favoured and chosen, something comparable to the Jewish people’s acclaim for the divinely chosen monarch, and the Christian communi¬ ty’s assent by acclamation to the choice of bishop for a diocese. Moreover, whatever variation may have existed in practice among the different prehistoric forms of tribal kingship in western Europe, variations that lasted into the period of recorded history, hereditary kingship had become common, if not virtually universal, by the early period of the post-Roman Imperial era. Accordingly, the view that the exercise of political authority among European tribal societies at this time was elective in any meaningful sense cannot stand. It seems that the central feature controlling the practice of royal succession among the Germanic tribes by this time was “blood” or royal kinship, rather than the claims of any particular family member. Strict hereditary succession, therefore, did not always occur. Even in the most stable royal families, no heir was certain to succeed; even though most did, some did not. And when all the heirs survived and the kingship was divided among them, a practice that continued into Merovingian times, the division did not have to be territorial.106 Most of the early Germanic codes of law107 implied that inheritance by all male heirs was the norm, although most of these “kingdoms” did not apply their own inheritance laws to inheritance of the kingdom itself.108 The Visigothic kingdom of the seventh century was not hereditary, for example, while the Frankish kingdom was.109 Even the case of the non-hereditary character of the Visigothic kingdom requires careful examination, however. While it has ben held up as an example of the notion of elective monarchy, the practice of succession based on heredity appeared very early in Visigothic history, and few seventh-century Visigothic rulers came to exercise royal power solely as the result of a strictly elective process. It is more accurate to speak of an occupative throne, inasmuch as association, designation, and simple usurpation all

106. Wood, Law and Society, p. 23. 107. A useful collection of data on early medieval codes of law is Joseph Balon, Ius medii aevi, 3 vols. 108. Wood, “Kings, Kingdoms,” p. 26. 109. Ibid.

Early Medieval Period

55

were significant factors as well in determining who came to power at a given time.110 The fact that there seems to have been at least some form of electoral or acclamatory function provided to the people, or perhaps only to the nobles or warriors, in the Germanic notion of kingship shows that it is correct to speak of some kind of upward movement in respect of sources of authority; and it is clear that the Germanic terms for king derive from kin, people, and tribe.111 There is also evidence of the concept of limiting the royal authority in features of Germanic law such as the right of resistance, the possibility of deposition, and the participation of all free men in judicial and criminal procedures through the notions of self-help and blood feud.112 But as has been seen, the concept of limit is not uniquely Germanic or barbarian; as applied to the exercise of authority it can be found in Christian political thought from its beginnings, as well as in Greek political theory and Roman law. And the specific notions of deposition and equal participa¬ tion in governance in some manner by all members of the society were known and practised in some forms of medieval monasticism as early as the sixth century.113 There are examples of the explicit use of consent with respect to lawmaking in the early medieval period, probably reflecting interest¬ ing fusions of Germanic and Christian concepts, these latter likely derived themselves from Roman law. The Laws of the Burgundians, fifth century, were said to have been drawn up by the common will of all,114 and the Fourth Council of Toledo (633) seems to show evidence of a rudimentary contract between ruler and people, entailing con¬ sent.115 Some rudimentary form of legislative assembly existed in the Carolingian era, a reflection perhaps of the sort of popular legislative assembly found in the Scandinavian countries of the same period. According to the chronicler of the Annals of Lorsch for 802, changes in the law were to be produced by the action of the populus christianus: what was meant apparently was not a genuinely popular assembly, but a convocation of those having a place at “chapter”—the aristocracy,

110. Wood, Law and Society, p. 24. 111. Ejerfeldt, “Myth of the State,” p. 163. 112. Ibid. 113. See infra. Part 3, 2B. 114. Gough, Social Contract, p. 25, citing MGH, Leges, Nat. Germ. 2.1.14, p. 34 et n. 2. 115. Gough, Social Contract, p. 25, citing Mansi, Concilia, 10.638.75 at n. 1.

56

Consent, Coercion, and Limit

provided they were Christians.Ilb Changing the law was a specific responsibility of this assembly, and those called to such a meeting were summoned for this particular purpose. Such changes were the work of the assembly as a whole, and were to be introduced as new legislation by the judgment of all (Capitula legi salicae addita ... ab omnibus iudicatum est: cap. 1, n. 142; iudicatum est ab omnibus ut, si Francus homo', cap. De functionibus publicis, c. 5; legis salicae per omnium consensum addenda esse.117 At this time the royal fideles constituted the assembly of “free men,” so this is probably the group charged with legislative responsibility.118 Whatever variations from this principle may have occurred then and later, this early ninth-century example of required consensus among the nobles seems to have been the norm.119 Another probable example of the same principle at work was the stipulation in the Edict of Pista of 25 June 864 that “law is to be made with the consent of the people (consensu populi) and formulation by the king.”120 Alcuin (d. 804) also used the expression vox populi, vox dev, but it is likely that the medieval usage of this formula intended not so much to indicate the wisdom and value of the opinions of the many, as the more prosaic notion that such an expression of popular will is practically irresistible. And again it seems that populus here designates the nobility rather than the people as a whole.121

116. Balon, Ius medii aevi, 2:206. 117. Ibid., 2:480-81, n. 1408. 118. Ibid. 119. Ibid. Qot = quodomnes tangit, the incipit for a Roman legal principle according to which “what touches everyone should have everyone’s consent”: see Part 3, ia. 120. “Quoniam lex consensus populi et constitutione regis fit,” MGH, Leg. 2.2.273. Carlyle notes that this formula “only sum[s] up the general principles and practices of the time ’: Carlyle, Political Liberty, p. 17; cf. his earlier comments to the same effect in the context of conclusions about the general conditions of lawmaking and royal authority in the ninth century: Carlyle and Carlyle, Mediaeval Political Theory, 1 ^35—39, esp. p. 238. 121. Gallacher, “Vox populi.”

PART TWO

The Twelfth Century

1. JOHN OF SALISBURY: THE POLICRATICUS

one has moved into a much more differenti¬ ated set of socio-political conditions than those of the earlier medieval period. Larger-scale political stability occurred more frequently and on a broader geographical scene as efforts got under way towards the centralizing of political authority that was to produce the modern nations of Europe, especially England and France. The conquering Normans had held England since the third quarter of the eleventh century, and were extending royal control across much of the central island. The Capetian dynasty had established itself about the same time in the roughly geographical northern centre of what was to become France, and had begun a somewhat similar process of extending their authority outward from the Parisian capital. The Christian church had experienced the stimulating purgative of the Gregorian reform in the latter half of the same century, and had emerged generally purified in respect of its religious and moral ideals and behaviour, as well as with a greatly increased sense of its autonomy from political affairs and control, and of confidence in its own institutions and administrative structures. Development of these structures was to provide the medieval church with the ability and the will to appear as a formidable foe for temporal rulers and lords then struggling to exert greater authority over enlarging geographical areas. The first, and truly universal administrative and power-wielding entity to emerge on this scene was the Church. Concomitantly came the temptation to vanity, and the mischievous sense of superiority that beclouded many a churchman’s perception of his responsibilities and in the twelfth century

5§

Consent, Coercion, and Limit

functions: the abstract principle that the spiritual is superior to the temporal is readily susceptible to practical abuses. The spiritual life of the medieval church was being revivified all this while, in the renewal of the old norms for morality and religious worship, and in the re-emergence of the monastic movement that was so integral an aspect of the Gregorian reform. Hundreds of religious communities of both men and women sprang up across the face of western Europe, variant forms of the earlier Benedictine mode of religious community and more austere forms as well. From them came many of the resources, human and other, for Church renewal, and for the inspiration that led to a re-examination of Christian life and thought in the centres of learning that developed in the thirteenth century into the great universities of Europe. The same widespread development of religious and clerical activity also produced the personnel to staff both the purely spiritual and the administrative structures of the medieval church. The renewal of intellectual activity in the twelfth century, and the increasingly necessary focus on the political and administrative activi¬ ties of both ecclesiastical and secular developments, produced a revival of interest in the theory of politics. An outstanding product of this activity was the Policraticus of John of Salisbury, written in the style of a “mirror of princes” with which earlier centuries were familiar, but significantly superior to all previous examples.1 A twelfth-century England churchman, humanist, and man of letters, Salisbury was one of the most educated persons of his generation, and had connections both ecclesiastical and secular extending from Rome through Paris to Canterbury and including popes, kings, and saints. Subtitled “the frivolities of courtiers and the footsteps of philosophers,” John’s i. The standard modern edition of the Policraticus is Ioannis Saresberiensis episcopi camotensispolicratici, ed. Clemens C. I. Webb, 2 vols. (London: 1909; reprinted Frankfurt a. Main: Minerva, 1965). Its most relevant political parts are translated into English in The Statesman’s Book of John of Salisbury, trans. John Dickinson (New York: Russell and Russell, 1963). Much interesting autobiographical data having to do with John’s formal education can be found in The Metalogic on ofJohn of Salisbury: A Twelfth Century Defense of the Verbal and Logical Arts of the Trivium, trans. DanielD. McGarry (Berkeley: University of California Press, 1962). A recent analysis of Salisbury’s political theory is in Berman, Laze and Revolution, pp. 276—88, where John is called the “founder of western political science. Berman rightly locates John in the context of new legal, ecclesiastical, and political currents, but overestimates the unity of his thought in its effort to synthesize a wide variety of elements from disparate intellectual sources. Berman also errs at one point in presenting Salisbury’s doctrine: see n. 32 below.

Twelfth Century

59

Policraticus was written in 1259 and dedicated to a personal friend, Thomas Becket, then chancellor to England’s King Henry II, before he became archbishop of Canterbury and fell later as a martyr in one of the more famous episodes of the church / state conflict in medieval England. The work itself has been referred to as the only important political treatise written before the re-emergence of Aristotle’s Politics in western England,2 and as the earliest and one of the most influential of medieval writings on politics.3 It is a presentation of dos and don’ts for the Christian ruler, thus exemplifying directly the category of treatise that outlines the specifics of personal moral perfection required of a ruler. Yet it is a vastly more sophisticated example than earlier models. Its contents reflect its author’s erudition, with John using the traditional literary form to present both religious and secular classical material in the expression of his views. The work provides thereby a unique insight into the range and character of the intellectual life of the period.4 There is no need for a full account of the contents of the Policraticus, but a brief survey will show John’s basic theory of polity. According to Salisbury, a ruler’s function is to act as “head”5 of the body politic (though he does not actually use this latter term); Christian priests are its “soul.”6 In exercising authority, moreover, the ruler has an obligation to obey the law; he must not act either arbitrarily or exclusively in his own interests. Actions that are either arbitrary or exclusively selfinterested on the part of the ruler are contrary to the very f unction of rule; they are tyrannical.7 The archetype of political authority for the author of the Policraticus is the prince, a single all-powerful ruler8 who, nevertheless, does well to receive advice from a group of wise men whom he should gather around himself.9 John simply accepts that a polity should have but one head, neither arguing for this mode of 2. Dickinson, Statesman’s Book, p. xvii.

3. Dickinson, Statesman’s Book, p. vii. On the influence of the Policraticus for later medieval and Renaissance jurists, see Ullmann, “Influence of John of Salisbury.” John also was familiar with the contemporary developments in canon law: see n. 39 below. 4. For the classical and earlier Christian sources reflected in the Policraticus see Liebeschutz, Medieval Humanism. 5. John of Salisbury Policraticus

5.6.548D.

and elsewhere are to the Webb edition. John of Salisbury Policraticus 2.5.539B.

(548D) 6.

Ibid., 4.1.513B. Ibid., 4.1.514A. 9. Ibid,. 4.6.522c; 524D. Cf. n. 31 below. 7.

8.

Page references to the Policraticus here

6o

Consent, Coercion, and Limit

governance nor directly considering alternative forms. The later medieval practice of explicitly considering oligarchy and democracy as possible alternative forms of government appears only after the mid-thirteenth-century emergence of Aristotle’s Politics. The prince or ruler holds authority directly from God; his exercise of it, like the power itself, is somehow religious and sacral, reflecting the special character of the person possessing it.10 John cites St. Paul: “The power which the prince has is therefore from God: who therefore resists, resists the ordinance of God” (Romans 13:2).'1 The purpose or object in exercising princely power is the good of everyone in society, the good of the people as a whole, whose representative the ruler is.12 In pursuing the common goals of all, the ruler must exercise power in accordance with the requirements of the common good,13 require¬ ments established in and reflected by the law.14 Thus, the ruler is constrained by law, limited to exercising power in accordance with the law; and he is himself subject to the law even as ruler. The limits of the law circumscribe the legitimacy of the ruler’s power. In holding that the ruler must function under the law, John bases his position on the Christian Scriptures, citing texts from both the Old and New Testaments, and appealing directly to Old Testament directives given to the kings of Israel.15 Other instances have been seen of Scriptural texts being used to maintain that the exercise of authority must always conform to the law, the primary ones being the Old Testament insistence that the rulers of the Israelites had no other function than to direct the Chosen People in accordance with the law given them directly by God.16 And Salisbury cites precisely these Old 10. See Liebeschutz, Medieval Humanism, p. 46. For the notion of the sacral character of kingship see Kantorowicz, King’s Two Bodies. 11. John of Salisbury Policraticus 4.1.514A. 12. Ibid., 5.2.539B. cf. 4.2.515B. The concept of the ruler as “representative” of the people appears frequently in medieval political writing, and the concept’s meaning requires careful interpretation.

13. See the lengthy list of obligations of the ruler towards the public usually expressed in terms of morally virtuous acts to be performed: Statesman’s Book, p. li. See also the citation from the earlier (fifth century?) work, De duodecim abusionibus saeculi 9, reproduced by Dickinson at p. liii, and p. liv, n. 162. 14. John of Salisbury Policraticus 4.2.514C-D. John speaks of the law here in terms strongly reminiscent of the Roman legal concept of law as a gift of God: Dig. 1.3.2; cf. Post, Studies, p. 259, nn. 32 and 34.

15- J°hn of Salisbury Policraticus 4.4.518c—gB. 16. See Part 1, 2-3, above. An earlier and clear expression of the principle that the temporal ruler is bound to obey the laws of his own jurisdiction in the same way clerics are bound by the canons of ecclesistical law is in the ninth-century work of Hincmar of

Twelfth Century

61

Testament directives. Earlier Christian apologetic writers had repeat¬ ed the same principle, and had extended its application by stipulating that for the case of Christians living under “pagan” (that is, nonChristian) political regimes, non-Christian rulers also were entitled to exercise jurisdiction only within the limits of the law (of the Christian God).1' According to this view Christians, and by implication all other subjects of political authority (even the political authority of nonChristian rulers), could not legitimately be required to act contrary to the law (of the Christian God). The notion that a ruler should obey his own laws was stated clearly by Isidore of Seville, who connected the law with the concept of justice; Gratian cited Isidore on this point.18 The later treatises on kingship consisting largely of admonitions to follow justice and mercy, to seek wisdom, and fear God, and which contrasted king and tyrant in a highly standardized way—the “mirror for princes” literature—follow Isidore’s general position. John of Salisbury reiterates the principle. But the force with which he does so, and the central location he gives it in his text, are evidence of something not seen before in Christian political writing. Learned as well as intellectually astute, John saw a need in his own day for placing particular emphasis on the view that a ruler must conform to the law. He was familiar with an important new phenomenon on the intellectu¬ al scene in the mid-twelfth century, the renewed awareness of and interest in the contents of Roman civil law;19 and he was familiar with a maxim of that code that held that the king is above the law.20 The

Rheims De ordinepalatii (MGH, Leg. 2.2). Hincmar cites Augustine on the point in Devera religione; for other relevant texts from Hincmar, and their references, see Carlyle and Carlyle, History of Mediaeval Political Theory, 1:231-34 and notes. Hincmar also quotes Gregory the Great and Ambrose, showing the continuity and sources for the view. 17. See Part 1, 3—4, above. 18. Isidore Etymologiae 9.3; see also 3.47; 49; 52. Gratian quotes Isidore Etymologiae 9.52 at D.9 c.2. 19. See section 3 below. 20. The well-known Ulpian text, princeps legibus solutus est: Dig. 1.3.31; cf. Post, Studies, p. 259. But see also Ulpian’s view that the ruler will love and cultivate justice: “digna vox,” C. 1.14.4; cf. Kantorowicz, King’s Two Bodies, pp. 95, 104, and n. 51; Post, Studies, pp. 259, 302, and note the texts Post has collected showing how canonists used the concept of the ruler’s “worthy speech” to express the general will of the state and its people as applicable to the pope: p. 302, n. 132. Another dictum from Ulpian used to imply an absolute quality in authority was “quod principi placuit habet legis vigorem”: D. 1.4.1; see references in Post, “Vincentius Hispanus,” 165-66, and nn. 27, 28. Post rejects this interpretation for both dicta: “quod principii placuit” and “princeps solutus” in the same article, pp. 159-84, passim.

Consent, Coercion, and Limit

62

vigour with which John made his own case reflects his knowledge of this Roman legal dictum; and John would have none of it. He devotes considerable space to a rejection of this notion, citing Matthew 7:2: “By what judgment ye judge, ye shall yourselves be judged.”21 He goes further, and offers an interpretation of the Roman maxim: it should not be taken to mean that a prince can act legitimately outside the law, but only that a ruler has no human political power higher than himself to which he owes obedience. John is speaking of what today would be called the sovereignty of the ruler of any state. He did not intend to preclude the notion of a hierarchy of forms of temporal authority, but simply to insist that whoever exercised authority over any temporal sphere had no superior in respect of the exercise of political authority in that sphere. Consequently, the obedience he gives when he binds himself to the law is an obedience freely given.22 The steps John takes here show unmistakably that he is arguing directly against an alterna¬ tive view. He contends that a human political ruler is the supreme human authority in his own sphere: while making no explicit reference to Roman law when he rejects the maxim that a king is above the law, John makes it clear that he was familiar with this Roman legal dictum. Familiar with it he certainly was, as he was with Roman law in general. John also was prepared to cite Roman legal authorities when it suited him. The principle that the ruler should be subject to the law in fact was not a peculiarly Christian view, but a maxim of Greek political theory at least as far back as Plato23 and Aristotle;24 it also can be found in Roman political and legal thought. John of Salisbury was aware of its Roman origins, though not directly of the Greek precedents; and he quotes directly from the Justinian Code the admonition to a prince concerning his need to acknowledge himself bound by the law.25 John 21. John of Salisbury Policraticus 22. Ibid., 4.2 and 4.4, passim.

4.7.527A—c.

23. Plato, Republic 2.359A; 6.484A—485B. Plato does not express the maxim in so many words; but his distinction between tyrant and true ruler rests on the principle that the latter knows the politically good and makes laws that express it, to which all are enjoined in obedience. 24.

Aristotle Politics 3.16.1287318. Cf. John of Salisbury Policraticus 4.1.513B and where he cites Demosthenes as well as the Roman jurist Papinian on the

4.2.514D-5A,

same point. This reference to Demosthenes shows John’s familiarity with the civil code: see Dig. 1.3.2. Tierney notes a similar reference to Demosthenes in Accursius, Gloss and Cod. 7.33.12, “Divina”: Tierney, “Prince is not Bound,” p. 3. 25. John of Salisbury Policraticus 4.6.522c.

4.1.514B;

cf. Cod.

1.14.4.

See

also Policraticus

Twelfth Century

63

also employs the Roman civil code for his own definition of the term law, parallelling language from Justinian’s Digest and citing Chrysippus.26 John enters one qualification on his insistence that the ruler is bound by law, a move that reflects a refreshing improvement over earlier and more simplistic medieval handling of general formulae containing sophisticated concepts. He distinguishes between two types of law, flexible and inflexible; and the distinction enables him to admit that a ruler can dispense in certain circumstances from the former, although never from the latter. A ruler can mitigate or dispense from the verbal strictness of a flexible law, says John, “provided that the purpose of the law is preserved in its integrity by the compensation made to propriety or public utility.”2' This view, however, does not make clear the precise character of the distinction between flexible and inflexible laws. As well, John seems to draw very narrowly the limits of the ruler’s discretion, even in the case of flexible laws. Salisbury also distinguished between law and equity, and held that the ruler is bound ultimately by the latter rather than the former. Addressing the dictum that the prince is bound by the law and working with it as a maxim in Roman law, John maintains that the ruler should conform to equity rather than to the letter of the law. His technique is the same here as that seen earlier in his interpretation of the super¬ ficially or literally contradicting formula that the king is above the law: he simply rejects the literal meaning and offers a more reasoned and sophisticated interpretation. According to John, a ruler should prac¬ tise equity rather than merely providing a literal interpretation or application of the law, “not through fear of the law but out of love for justice.”28 Ambiguities remain in this formulation because of Salisbury’s failure 26. Ibid., 4.2.514c—d; the text cites Dig. 1.3. i and 2 at 515A. Webb cites the definition of law as from Azo, but without specific reference, while Dickinson notes that Fitting has found it in an ancient introduction to the Institutes: Statesmans Book, p. 6, n. 1. Interestingly, perhaps, Azo’s Summa institutionum was also the terminological source for the definition of law used by Marsilius of Padua: Lewis, “Positivism of Marsiglio of Padua,” pp. 545-48, 552-55: cf. Wilks, “Coronation and Representation,” p. 255. Webb identified literally dozens of citations made by John to the Corpus iuris civile-. Webb, Policratici, 2:4828—838. 27. John of Salisbury Policraticus 4.7.527c. John’s distinction between flexible and inflexible law reflects a point made by I vo of Chartres concerning the difference between variable and invariable law. 28.

Ibid.,

4.2.515A.

64

Consent, Coercion, and Limit

to spell out exactly what he means by distinguishing equity and justice from the law. This failure parallels the earlier one concerning the distinction between flexible and inflexible forms of law. Apparently, John appreciated that the specific contents of a given piece of legislation, “the law” in a given form of expression, did not compre¬ hend the essence of justice as a whole, and might even fail altogether to embody this essence. (John’s derisory remarks in another context about the fatuity of the debate among his contemporaries over the philosophical problem of “universals” ring a little hollow here.)29 Yet it is the essence of justice in itself that is the fundamental element engaging the correlative features of authority for the law-giver and obedience for the subject. John appreciated that it was justice, not merely a legal form of words, that constituted the reality and foundation of law; but he provided no specific criterion for detecting its presence or absence in a given case. All in all, John’s position affords very little flexiblity to a ruler in his response to law. The reason for this, quite simply, is that the metaphysical and cosmological frame of reference within which he operated, as well as the consequent theological formulations he employed, were both rigid and inadequate. For this reason also the ambiguities or difficulties in his position would not have been as obvious to John as they seem to a modern reader. To Salisbury, for example, there would not have been any ambiguity or apparent contradiction in his view that the prince is both above the law and yet bound by it; for he would never have associated the concept of an acceptable arbitrariness or personal value-judgment with the former principle. For John authoritative decision making and action cannot be arbitrary, by definition. John would never have accepted the view that illegal measures, that is, measures actually contrary to the law in the highest sense of the term law, could be justified in any circumstances, not even for the common good. To Salisbury this would be a contradiction in terms. At the same time there is some suggestion that John would have been prepared to concede sufficient initiative to the supreme authority in a state to act to protect and defend the necessities and essential interests of the commonweal, even in circumstances where his authority might be seen normally to be circumscribed by existing legislation. There are further ambiguities here that John fails to eliminate, but that he might well have acknowledged had he 29. John of Salisbury Metalogicon 2.17-20.

Twelfth Century

65

perceived them. Salisbury certainly never denied to a ruler the right to determine (legislate) matters for the sake of the common good; nor did he deny a king the right to dispense from a given law, or the power to pardon. The issue of consent appears in the Policraticus when John considers how a ruler comes into office. One can see in this consideration a feature not addressed directly in any previous Christian text dealing with the nature of polity; and the fact that John raises it indicates that the question was recognized by him as having current interest. His handling of it, however, shows only a slight advance in sophistication of theory. Salisbury’s doctrine on accession to temporal authority reflects directly his conception of kingship as sacral in character because emanating from a divine source, and no interpretation of it can be construed as particularly congenial to democratic thought. He actually employs the terms “election” (electio)30 and “to elect” (eligere),31 but the context shows that he is speaking of the ruler as chosen (elected) by God. The fact of the ruler being designated by God is what constitutes the real foundation of his authority. John had read carefully the Old Testament description of how God provided the first king for the Jewish people, and he repeats the fundamental element described in this procedure: selection of the king by God. He also lists details of an election process, however, showing an awareness of the complexities of political theorizing on the specific issue of procedure. Salisbury’s views concerning how a temporal au¬ thority comes into office are clear and quite comprehensive as he presents them in the early portion of Policraticus 5, 6, and they are based squarely and explicitly on texts from Samuel and Numbers. John notes three distinct elements in the proper method of choosing and installing a ruler: (1) “the secret ministry of God’s providence,” that is, a direct action of some kind by God Himself; (2) some “action by God’s priests”; (3) concurrence in placing the ruler in authority by “the votes

Policraticus 5.6.548D. 31. Ibid., 5.6.549A; 549c. John also invokes the concept of consent when he asserts that a king whose affairs are to prosper rightly should take the counsel of men of letters: 30.

Policraticus 4.6. But this text seems to envisage that the ruler might be illiterate; and further there is no clear requirement that the ruler must accept any such advice, or that royal decisions in contradiction of such advice would lack authority. John would certainly have agreed that a ruler should accept the advice of his council without, however, raising the specific question of whether or not legitimate exercise of royal authority explicitly required agreement from the king’s councillors.

66

Consent, Coercion, and Limit

of all the people” (totius populi vota concurrent).32 Further, John distinguishes this procedure from two other methods that, arguably, were being urged or at least displayed in current practice: hereditary succession and succession through relationship. He also states flatly that the proper procedure does not include the element of popular acclamation: Sic autem plane nulla est populi acclamation Finally, Salisbury’s denial of popular acclamation as an essential element in royal election is specifically connected to the ritual of coronation, to which he makes direct reference.34 His point seems to be that acclamation by the people was not an integral part of the biblical account of how Moses handled the installation of Josuah as leader of the Jewish community and that, accordingly, it need not be a feature of the coronation ceremony for a king. John here is making two points of interest to our concern: (i) the authority of the Old Testament account of accession to political office as involving consent of the people shows such consent to be adequately expressed by the people’s mere presence when certain actions are performed by priests; (2) the role of the community as a whole is thus passive. Accordingly, acclamation by the people, in the sense of some active role or some act to be performed by the people, is not an essential part of the coronation procedure. Concurrence of the whole people, then, is an essential condition for the legitimate designation of political authority only in the sense that the formalities of the act are to be carried out in public, “in the presence of the people”; what the “votes of the whole people” really express is only a form of public acknowledg¬ ment of the person already selected by God through some earlier

32. Ibid., 5.6.548D—9A. The Dickinson translation is in error on this point; it lists the three elements in the electoral procedure as apparently three different ways of selecting a ruler: “sometimes 1) ... sometimes 2) ... and again 3)”: Statesman’s Book, p. 83. John makes another reference to the choice of Saul as the first Jewish king at Policraticus 8.18, 785c. Probably following the Dickinson translation of the Policaticus, Berman makes the same error: Law and Revolution, p. 285. Berman refers to Salisbury’s use of two Old Testament examples where temporal succession was at issue: the identification of Moses as leader of the Israelites, and Moses’ decision regarding the paternal inheri¬ tance for the daughters of Salphaat. But, curiously, he makes no mention of Salisbury’s paradigm case for accession to temporal authority, God’s selection of Saul as the first Jewish monarch. John’s analysis of this case identifies the three essential elements in accession to political authority, all of them falling under the fundamental principle that the ruler is chosen by God. John of Salisbury Policraticus 34. Ibid. 33.

5.6.549B.

Twelfth Century

£>7

action, acknowledgment by physical presence in a public ritual. John’s direct reference to the non-essential character of popular acclamation in respect ol the coronation ceremony may well reflect a willingness to limit the people’s role in royal accession in a way similar to that seen in Gratian s contemporary and parallel views concerning the limited role of the people in the election of bishops. What John had in mind was a form of juridical or ritualistic concurrence for a person already selected by another means, the essential element of which was divine designation, and not a method for establishing the identity of a ruler by popular choice. John was willing in practice to accept hereditary succession as the actual mechanism for identifying the individual selected for the exercise of political authority; heredity seemed to him to provide generally adequate presumptive evidence for the essential ingredient of divine selection. But what counted ultimately was the moral probity of the ruler, something the male heir could be presumed to possess.35 In this connection John was prepared also to accept the element of popular consent, but only as confirmatory in a purely ritualistic way of the legitimacy of hereditary succession: the role of the people’s consent is once more merely concurring in its function, and does not entail actual selection. Salisbury thus continued to employ the apparently traditional Christian notion of ritualistic popular approval, and grounded this notion in the accepted authority of relevant Old Testament texts. And though explicit evidence is lacking on this point, there is good reason to speculate that John also would have conceded some role to the people in consenting to the provision of ecclesiastical rulers, inasmuch as this notion was current at his time and was expressed in ways with which John would have been fully familiar. But here, too, the notion of popular consent expressed an element of pro forma concurrence, nothing more substantial.36 John also was prepared to indulge a ruler in the legitimate exercise of authority even when he failed to display the full range of required virtues; and he advised obedience to an evil king: “as long as his vices are not absolutely ruinous [he is to be shown] obedience in every way.”37 35. Policraticus 6.6.549c; 4.11, passim. The same view can be found in Augustine De civitate Dei 5.24. But see Liebeschutz, Medieval Humanism, pp. 47-48. John also quoted Scripture to support the view that hereditary succession of authority was proper: Policraticus 5.6.549c; 4.11.533B: cf. Num. 27:1—6; Ps. 89:29. 36. John makes frequent reference to Gratian’s Decretum: see Policraticus 2:486b-7A.

37. John of Salisbury Policraticus 8.20.793B; cf. 8.18, passim.

Consent, Coercion, and Limit

68

This text makes clear, however, that limits exist for the obligation of subjects to submit to political authority, showing another instance in which Salisbury was prepared to expand his inquiry into the nature of polity and try to come to grips with one of its significant issues. John spells out the limits of obedience to authority in excessively abstract and moralistic language; yet he does not shirk the logical consistency of drawing the ultimate inference from his earlier insistence on the feature of limit. He is prepared to justify tyrannicide, though his justihcation is couched in ill-defined and very general terms. Just as the legitimacy of a ruler’s authority was limited or circumscribed by the law that gave expression to the purpose for which he exercised authority and to which he was obliged to subordinate and regulate his own behaviour, so was the obligation of obedience on the part of those subject to authority limited to acceptance only of such authority as was not ultimately destructive of its very purpose.38 The limits of this obligation to obey might be very broad, but limits there were. A doctrine of tyrannicide is regularly and properly attributed to John of Salisbury, but his formulation on this point is neither very straightforward nor very precise. His acceptance of the legitimacy of assassinating a tyrannical ruler probably was grounded in Cicero’s explicit countenancing of such an act,39 even though John makes no reference to Cicero and develops his own justihcation largely on the basis of an appeal to Old Testament instances where the killing of a tyrant seemingly was approved. He makes a number of explicit statements favouring tyrannicide: “By the authority of the Scriptures it is a lawful and glorious act to slay public tyrants”;40 “it isjust for public tyrants to be killed”;41 “to kill a tyrant is not merely lawful, but right and just;”42 but his development of the doctrine is less forthright and 38.

Ibid.,

6.25.626B.

39. Cicero De officiis 3.6.32; cf. Policraticus 3.15.512c. John of Salisbury Policraticus 8.20.7936. 41. Ibid., 8.20.795A. 40.

42. Ibid., 3.15.512D. Further less specific references to tyrannicide are at 8.17: “The tyrant ... is generally to be killed” (8.17.778A). A recent article explains the confused

character of John’s views on tyrannicide by suggesting that the Policraticus text operates at both a theoretical and a practical level: Rouse and Rouse, “John of Salisbury.” This thesis is not entirely satisfactory. That John might have feared tyrannical behaviour from Henry II of England is certainly plausible; but I prefer to think that confusion or inconsistency in John’s views here reflects failure to work through the implications of his own thought, rather than an explicit effort to warn Henry indirectly about how God might act through an assassin to punish the king’s tyranny.

Twelfth Century

69

satisfactory. Having listed several examples from history that seem to show that tyrannicide isjustihed, John mentions a number of qualifica¬ tions to its apparent legitimacy: “None should undertake the death of a tyrant who is bound to him by oath or by the obligation of fealty”;43 poisoning seems not to be a legitimate method for dispatching a tyrannical ruler, on the grounds that John knew of no law that permitted it;44 and finally: “Removal of tyrants from our midst ... should be done without loss of religion and honor.”45 No further specification is provided, however, concerning how the requirement to maintain religion and honour might be met. John has little or nothing to offer his reader concerning either political forms or policies, much less the specific legislation through which the ruler should give expression to his purpose of promoting the common good. The function of the ruler, he says, is to strike terror into his subjects. Thereby, seemingly, the prince will awe and coerce them into “being good,” doing what they should do, obeying the law.46 John is clearly more than willing to attribute coercive power to the ruler.47 It is an essential requirement in any ruler; and John even defines the antithesis of the good ruler, a tyrant, in terms of “force misused.”48 Interestingly, too, especially in light of the subsequent use of this terminology, John employs the word “sword” to designate the coercive power of political authority.49 The language and mode of speech of his contemporary Bernard of Clairvaux appear in the Policraticus when John speaks of the power of the state as a sword, received from the Church, which has two swords in her own right.50 Salisbury knew Bernard’s views on the subject as well as the terms of their formulation, just as he knew the great Cistercian personally. Like many earlier and later medieval texts on political issues, the Policraticus moves on a purely abstract plane, frequently to the 43. John of Salisbury Policraticus 8.20.796c. 44. Ibid. 45. Ibid. 46. John of Salisbury Policraticus 4.1 514A—b. 47. Ibid., 4.1.513c—4B. Even tyrants have a right to the exercise of coercive power: Ibid., 48.

8.18.786A.

Ibid.,

8.18.786A.

49. Ibid., 4.3 passim. 50. A recent article shows that, while John and Bernard of Clairvaux employ the “two swords” formula, Salisbury’s position distorts that of Bernard and gives it the more radically papalist interpretation that became common in the later thirteenth century: Kennan, “De consideratione."

Consent, Coercion, and Limit

70

irritation of a modern reader hoping to discover some tincture of connection with the real world, some indication that its author perceived the practical significance of at least some of his more striking theoretical postures. Salisbury’s Policraticus is a constant disappoint¬ ment in this respect, although in other writings he was quite capable of offering perceptive and penetrating personal comments on the realities of his day.3* A final comment might be made connecting John of Salisbury with his own time: an interesting comparison can be drawn between John’s approach to a theory of temporal polity in the Policraticus and the theory of ecclesiastical polity presented in the great contemporary canonical legal work, the Decretum of Gratian, with which Salisbury must have been familiar and whose views would have had great interest for him.52 2.

OTHER TWELFTH-CENTURY SOURCES

A. The Norman Anonymous As its title indicates, the Norman Anonymous is an early twelfth-century document of northern European provenance written by an unknown author.53 Basically a political treatise of polemic intent, it incorporates an extreme expression of the superiority of kingship over the Church, on the grounds that the king is rex sacerdos in the Melchisedechian model, and thereby exercises a sacral power. Its author speaks of the king as reflecting the divine nature of Christ, whereas the priest reflects human nature. And while reference is made in the text to “election,”54 its meaning is “predestination”; and the author speaks of a subject’s obligation to obey his king as a foretaste of heavenly liberty. Naturally enough, the work argues against the dictum of Celestine I, by then generally accepted, regarding episcopal election, that a bishop should

51. See John of Salisbury’s chatty account of his own student life in Metalogicon 2.17-20. John understood well the implications of his views for the England of his day, of course, even though he made no reference to the contemporary scene. 52. See n. 36 above. 53. G. H. Williams, ed., The Norman Anonymous of 1100 A.D., Harvard Theological Studies 18 (Cambridge: Harvard University Press, 1951). See Berman’s account of the Norman Anonymous, which contrasts it with Salisbury’s Policraticus and terms it “the last important pre-Western (that is, premodern) treatise on government”: Berman, Law and Revolution, pp. 276—77. 54. Norman Anonymous, p. 198.

Twelfth Century

71

not be given to those unwilling to receive him (nullus invitis detur episcopus).55 B. St. Bernard of Clairvaux Two other twelfth-century Christian writers also should be mentioned in connection with the political thinking of the period, although neither of them was a political thinker in any direct sense. Both commented on such issues indirectly, however, and did so in documents that acquired considerable authority and significance in later medieval times. St. Bernard of Clairvaux (1091 — 1153), the great twelfth-century Cister¬ cian mystic and theologian, was a man of many facets and one of the dominant figures of his era. Inveterate Church reformer and scourge of heretics both inside and outside the Christian church, preacher of the Second Crusade against the Moslem infidels, he was a close friend, confidant, and correspondent to many persons in high places, eccles¬ iastical and temporal.5'3 He composed a treatise offering advice to a fellow Cistercian, close acquaintance, and former student who suc¬ ceeded to the throne of Peter as Pope Eugene III in 1145, a work that soon came into general circulation under the title De consideratione\57 Its author offers some striking comments on the character and substance of papal authority that not only caught the attention of their recipient, but came quickly into widespread use and acceptance. Bernard’s in¬ tention was to proffer sound if traditional advice to the Roman pontiff concerning matters for which the papacy had supreme responsibility. The language he employed, however, stressed in the first instance the universal, all-encompassing feature of papal authority in such a way that the distinction he went on to make between the spiritual and the temporal could be blurred easily. Bernard’s actual distinction between the two spheres of authority proceeded with a reference to two “swords,” the spiritual sword and the temporal sword; and the basic

55. Celestine I Epistolae 4.5, cited in Gratian, D.61 c.13 and D.63 c.26. 56. So much research has been done in recent decades on Bernard that a new and comprehensive biography taking all the latest scholarship in account is needed. The standard brief biography in English is Watkin Williams, Saint Bernard of Clairvaux. An earlier, much more substantial effort is E. Vacandard, Vie de St. Bernard, 2 vols. 57. Bernard of Clairvaux, De consideratione ad Eugenium papam, ed. Jean Leclercq and Henri Rochais, Sancti Bernardi opera, vol. 3 (Rome: Editiones Cistercienses, 1963). An English translation has appeared: Five Books on Consideration: Advice to a Pope, trans. John D. Anderson and Elizabeth T. Kennan (Kalamazoo: Cistercian Publications, 1975).

72

Consent, Coercion, and Limit

intent behind this language was to distinguish between two forms of “coercive” action available to the Church, that is, to spiritual authority, in the pursuit of its own legitimate spiritual purposes.58 Bernard held that both the spiritual and the temporal swords were legitimate possessions of the Church for use in furthering its spiritual purposes; but he advised the pope against using the material sword, that is, coercive physical power, even for legitimate spiritual purposes: the material sword, while legitimately in the pope’s possession and thus available to him for use, should not be used by him or any other cleric. The use of physical coercion, even for spiritual ends, should not be practised by clerics at all, but should be left to lay authority. Otherwise, clerics who should interest themselves exclusively in matters of the spiritual order and direct their authority exclusively to spiritual affairs, might become contaminated by contact with material things. The Bernadine advice, however clearly it was formulated—and consider¬ able evidence exists to show that its formulation was sufficiently clear to its contemporary readers to be understood in terms of the interpreta¬ tion just offered—came later to be used in support of much broader claims for papal authority than Bernard originally intended.59 The Cistercian mystic did not have in mind the use to which his remarks were put later in extending claims for papal authority over temporal affairs in a manner that would be seen today as an illegitimate intrusion of ecclesiastical authority into the sphere of temporal politics; yet the lapidary character of his text made such an interpretation very easy. To be fair to Bernard as well as to twelfth-century interpretations of what he might have meant by his doctrine of the two swords, a number of points can be made: (1) The Bernardine text itself did not assert, nor was it the author’s intention to assert, that the Church should itself employ physical coercion for any purpose whatever. What it precisely 58. A sustained effort to unravel the original Bernardine “two swords” doctrine from the use the image was put to by later medieval papalists is in the work of Stickler, “De ecclesia potestate”; “De potestate gladii materialis”; “II ‘gladius’ nel Registro di Gregorio VII”; “II ‘gladius’ negli atti del concilii e del R.R. Pontefici”; “II potero coattivo materiale: Der Schwerterbegriff bei Huguccio.” The Kennan article has a good review of recent scholarship and a bibliography on this and other aspects of Bernard's views on the relationship of church and state, and offers a balanced judgment on the advisability of reading a full-blown theory of papal monarchy into the De consideratione\ Kennan, “De consideratione,” pp. 101 — 15 and n. 112. 59. See, for example, the interpretation of the two-swords image in Aegidius of Rome De ecclesiastica potestate 1.7.8 and 9.3.9.

Twelfth Century

73

denied was that the spiritual authority should use coercion for attaining legitimate spiritual aims, even though it had the right to do so. (2) Inasmuch as Bernard conceded to the spiritual authority a right to use physical coercion in the promotion of spiritual ends, even though the Church should not do so, it is conceivable that he might also have conceded to the spiritual authority a comparable right to the use of physical coercion in furtherance of the Church’s temporal purposes (assuming that for him the Church could be said to have temporal as well as spiritual purposes). In fact, however, he was completely silent on this point, so that it is not possible to state exactly what his views on it were. (3) Bernard was equally silent concerning what form any physical coercion applied by temporal authorities on behalf of the spiritual aims of the Church might take. Bernard’s two-swords terminology found an immediate echo in the mid-twelfth-century, as noted earlier. John of Salisbury’s Policraticus repeated the Bernardine formula in the Cistercian’s own terminology, but expressed the doctrine in such a way as to offer a seemingly clear statement of total ecclesiastical sovereignty: “The prince is the servant of the priest, and exercises that portion of the sacred duties which are unworthy of sacerdotal hands.”60 While John’s statement can still be construed to mean that Salisbury was speaking only of the use of physical coercion in the pursuit of the Church’s spiritual goals, it is comparatively easy to appreciate that the words could have been construed quite differently, to mean that John was asserting that the whole of the prince’s temporal authority was under the spiritual power to which it belonged by right.61 It was in this latter sense just noted that the formula and phraseology of the two swords came into regular and frequent use for centuries later as a foundation stone in various pro-papalist theories of church / state relations. Yet Bernard never intended to produce a comprehensive doctrine on the relationship between spiritual and temporal authorities; even less had he in mind to develop a theory of temporal polity. 60. John of Salisbury Policraticus 4.3.51 6a. 61. This was, of course, the standard interpretation of the later papal monarchists such as Aegidius of Rome: see n. 58 above; cf. Kennan, “De consideratione,” pp. 76-84. Ullmann, who construed John and Bernard as both holding extreme hierocratic views on papal sovereignty over temporal authority, did not note the differences in their use of the swords image: Kennan, “De consideratione,” pp. 81, 104, n. 127. Cf. Ullmann, Growth of Papal Government, pp. 426—37, esp. p. 427.

Consent, Coercion, and Limit

74

C. Hugh of St. Victor Hugh of St. Victor was another prominent twelfth-century theologian whose writings were extremely influential in the later medieval period. His work On the SacramentsJ also contains a scrap or two of comment concerning the authority of the Church, texts that tend to reappear in subsequent medieval political writings.(>3 But like Bernard, Hugh was not primarily interested in political theory, whether of church or state; and for the most part he simply repeated Bernard’s two-swords doctrine, thereby incidentally making the treatise On the Sacraments an important vehicle for the transmission of the Bernardine theory. It is difficult, then, as it was with Bernard, to extract anything resembling either a full or fully coherent doctrine of polity from Hugh’s text, nor even a fully articulated doctrine of church / state relations. Hugh, however, did offer a slightly broader intellectual perspective on the point of the superiority of the spiritual over the temporal.

3.

THE RENEWAL OF THE STUDY OF LAW

While it is essential to examine twelfth-century political treatises such as the Policraticus, unquestionably the major developments in political theory and the notions of consent and coercion in this period are to be found in the law, in the theory and practices associated with the courts and with legal administration, both civil and ecclesiastical. A funda¬ mental feature here paralleled the renewed intellectual, administra¬ tive, and political activities of both church and state and was an integral part of them: the twelfth century saw a remarkable revival of the formal study of law. Throughout even the most chaotic periods follow ing the collapse of the Roman Empire in the West, there had been some retention of the knowledge and practice of the system of Roman civil law, some awareness of this great monument to the Roman genius for political

62. Hugh of St. Victor, On the Sacraments of the Christian Faith, trans. Roy J. Deferrari (Cambridge, Mass.: Mediaeval Academy of America, 1951). This translation is based on what Deferrari called a critical text of the De Sacramentis prepared by Brother Charles Henry; this Latin text has yet to be published. An earlier Latin text is found in PL 176. 63- Aegidius of Rome made extensive use of the De sacramentis of Hugh of St. Victor, as well as of Bernard ofClairvaux: De ecclesiastica potestate 1.4, 1.5, 2.2, 2.4, 2.6, 2.7, 2.10, 3-H-

Twelfth Century

75

organization and administration.64 Its persistence in Gaul from the fifth through to the tenth centuries was rather more significant than has been thought by earlier historians, although it is found there not so much in the retention of the classical rules of Roman law as in the post-classical Roman legal practices of the period preceding the Germanic invasions. In some instances formal traces of Roman law pei sisted, but usually without any real understanding of the formulae, so that their juridical value had been lost. The Carolingian renaissance of the late eighth and early ninth centuries saw some conscious effort at renewal of the law, both civil and ecclesiastical; and some references to actual Roman legal precedents began to reappear. In practice, however, the situation was the reverse; the fusion of Frankish and Germanic populations produced a mixture of social and economic elements, and custom began to assume greater importance in the developing context of feudalism, for which Roman law had never been designed. The Roman legal system, however, retained its prestige and technical value among the clerics of the Christian church, where it continued to exercise a fascination for scholars rather than practition¬ ers. In addition, moreover, the old Roman law in its last formulations had provided a privileged position for the Church; and for this reason, as well as for the attraction of its intellectual and formal rigour, clerics were disposed to retain an interest in it. Thus it began its long history as a droit savant which, in the words of a contemporary legal historian, “though made in another era and for another society, [it] remained as a model, guide and sometimes an inspiration.”65 The real locus for the Roman legal system itself, of course, had moved to the East after the collapse of Rome in the fifth century; and the most impressive of all Imperial Roman efforts to systematize the law had been made in Byzantium: the early sixth-century codification ordered by Justinian, which has been given his name.66 By this time it was too late for any general application of the code in western Europe, the political structure of which had largely disintegrated into more or less geographically isolated and politically insignificant enclaves. Only 64. A brief, useful treatment of the prevalence of Roman law in the early Middle Ages is Gaudemet, “Survivances romaines”; see also Gaudemet, Formation de droit seculier, “Doctrine des sources”; and a reprint collection of his articles, Formation du droit canonique medieval, which contains the first article noted above as Text II. 65. Gaudemet, “Survivances romaines,” pp. 205—6. 66. The standard modern edition is Corpus Iuris Civilis (Dig., Cod., Inst., Nov.), ed. T. Mommsen et al., 3 vols.; new printing Berlin, 1954, of the 12th ed., 1911.

76

Consent, Coercion, and Limit

the gradual return of something approximating general political stability in the twelfth century made possible any significant and widespread revival of the rule of Roman law. A conscious part of this revival involved the perception of the greatness of the Roman legal system, and of the need for its renewed study. The Gregorian reform movement in the Church provided the stimulus to bring this percep¬ tion to full focus in the twelfth century. The actual revival of the study of Roman civil law began in northern Italy, where lawyers and students of law gathered in Bologna from the second quarter of the century.h? By the end of the century, the knowledge of Roman law, and its influence was widespread in continental western Europe. A parallel development took place with respect to the law of the Church, canon law. And it is no longer possible to deny or even doubt that the same happened in England as well. Some slight Roman influence had been evident even in Anglo-Saxon England, and this had been modestly increased as a result of the Norman Conquest.68 But the study of Roman law in England began with Vacarius at Oxford, about the middle of the twelfth century, very shortly after Bologna had developed in northern Italy as the major centre for the study of both civil and canon law.69 Vacarius was born about 1120, and studied both Roman and canon law at Bologna under the “Four Doctors,” themselves the immediate pupils of the founder of the great Bolognese school of glossators, Irnerius. Vacarius became a magister of law, and was brought to England about 1143 by Archbishop Theobald of Canterbury to assist in the administration of that see; he was transferred to York in the 1150s.70 There is evidence that a centre for the study of Roman law existed at Oxford before the end of the twelfth century; and by the early decades of the thirteenth century law had become a separate faculty, along with arts and theology, here as well as in most of the newly established 67. A brief accessible treatment of the medieval revival of the study of Roman law is in Ullmann, Law and Politics, pp. 81 — 116, with bibliographical data at p. 84, n. 2. See also Kuttner, Harmony from Dissonance', Gilmore, Argument from Roman Law, and Ius Romanum medii aevi. Medieval interest in Roman law began with the rediscovery about 1070 of Justinian’s Digesta, the central element of ancient Roman jurisprudence: Kuttner, ibid., p, 6. Cf. Berman, Law and Revoution, pp. 85—164. 68. Post, “A roman-canonical Maxim.” Post provides bibliographical data on the early influence of the two laws in England: Studies, pp. 184—88, nn. 69—91, and p. 315, n. 12. 69. Post, Studies, p. 185. 70. See Steen, “Vacarius and the Civil Law.”

Twelfth Century

77

universities. (Frederick II established a school of law at Palermo that was intended to be a new Bologna.)71 As regards later and more specifically political applications and influence of Roman law in England, it is known that French legists were in England during the reign of Edward II,7' that the great canonist Hostiensis advised Henry III occasionally, and that the younger Accursius was in England for a short time with Edward I.7-* Connections between Bolognese legal scholarship and English legists were continued into the thirteenth century by Thomas of Marlborough, who had close connections with canonists at Bologna, as well as by William of Drogheda later in the century.74 The dissemination in England of both Roman and canon law was assisted greatly by clerics who brought their knowledge as well as manuscripts in both laws with them from the continent to churches such as Exeter’s. 1 he great English civil legist Bracton was connected with Exeter, although he likely learned his Roman law at Oxford, where both the corpus iuris civilis (the Roman civil law code) and Roman canonical treatises were under formal study by the middle of the thirteenth century.75 The students were clerics, many of whom subsequently took employment in both civil and ecclesiastical adminis¬ trations, and in noble households and sheriffs’ offices, as well as in the king’s chancery and at various levels of ecclesiastical administration, performed the tasks of writing letters, drafting legal documents, and keeping court proceedings. Influences from the renewal of legal studies and activity that began in the mid-twelfth century thus spread in much the same way and for much the same reasons as influences from the study of Aristotelian philosophy were to spread throughout Europe in thirteenth-century European universities: the subject matter in itself was of such compelling interest, and was perceived to be so clearly valuable and superior to any other currently available material, that its attraction was overwhelming. The parallel twelfth-century developments in Roman and canon law occurred naturally and frequently in the same places, Bologna and Oxford being good examples. Because less well known than the history 71. Congar, “Quod omnes tangit,” p. 232. 72. Post, Studies, p. 315; cf. n. 67 above. See also Richardson, “English Coronation Oath,” p. 69, n. 124; Haskins, “Francis Accursius.” 73. Post, Studies, p. 315, n. to. 74. Post, Studies, p. 185; cf. n. 76. 75. Ibid.

78

Consent, Coercion, and Limit

of European civil law, a brief account should, perhaps, be offered of the origins and development of the law of the Christian Church.7 Institutionalized Christianity always possessed some form of co¬ ordinated and authorized rule of faith and practices, the Sacred Scriptures being the most obvious and fundamental example. Canon (or Church) law may be said to have had its formal beginnings in 325, however, with the Council of Nicaea, this hist ecumenical council bringing together the heads of the most important churches in Christendom for the explicit purpose of “making law” for the whole Church. There had been earlier councils, but Nicaea represented the Erst “universal” gathering of Christian churches to make decisions that immediately and subsequently were to be accepted as binding through¬ out the entire Church. Another feature of the ecumenical council of Nicaea was its deliberate policy of collecting and presenting council decisions in a series of rules or “canons” organized in a systematic fashion under specific categories.77 The same procedure was followed by subsequent authoritative conciliar gatherings, so that a series of ecclesiastical decisions came into existence, rules or canons promulgated by a variety of authoritative Church gatherings. These canons from various Church councils, then, could be formed into a more or less comprehen¬ sive collection to serve as the basic content of Church law, and to become the object of examination, analysis, and interpretation. Collec¬ tions of canons produced by tacking the canons of one council on to those of other councils became the standard form for compiling law-books in the Church. This procedure resulted in a collection of material marked by diversity and even chaos in its contents, however, insofar as the different sources from which ecclesiastical decisions emanated were varied and even potentially at cross purposes. The conciliar decision-making gatherings themselves ranged from the relatively infrequent ecumenical councils to a wide variety of regional, provincial, and even local diocesan gatherings; and they took place in

76. A good, brief account in English of the history of Christian ecclesiastical (canon) law is Mortimer, Western Canon Law, see also van Hove, Prolegomena ad Codicem Juris Canonici; Stickler, Historiajuris canonici latini. Cf. Ullmann, Law and Politics, pp. 119—60; Gilby, Political Thought of Thomas Aquinas, pp. 23—54. 77. Decisions of the Council of Nicaea can be found in Mansi, Sacrorum conciliorum nova et amplissima collectio (Florence: 1759-1798; reprint and continuation; Paris and Leipzig: 1901-1927), 1.

Twelfth Century

79

widely different geographical locations and under widely varying cultural, social, political, economic, and other conditions. Fiom time to time attempts were made to produce order from this diversity, but it was not until the twelfth century that these efforts met with generally acknowledged success. About the year 500, a Scythian monk named Dionysitis Exiguus produced a reasonably systematic but modest collection of canons. His collection contained an itemized list of decisions from eight councils of the Greek church, of which Exiguus had made a careful Latin translation, as well as canons from several councils of the Latin church./8 Exiguus also produced a second edition of his first collection, containing a larger number of canons from the Latin church councils, and added later a collection of some thirty-nine judgments (decretals) of various popes, the bulk of them from Innocent I. These two books, the second edition of Exiguus’ first compilation and the later collection of papal decretals, came to be known as the Dionysiana,79 and were very influential in the early history of canon law. 1 hey were, however, by no means the only canonical collections made in this particular period. The era from the sixth to the eighth centuries saw an almost complete breakdown in any form of centralized Church administra¬ tion and authority, with the result that conciliar and other decision¬ making activity usually took place only at a local, or at best regional, level. And with there being little possibility for universal administra¬ tion, there was virtually everywhere an ignoring of the general rules of canon law. The Carolingian reforms of the late eighth and early ninth centuries brought a partial effort to remedy this state of affairs; but what followed was a further period of confusion and diversity, during which canonists felt free to interpret sources as they pleased and in accordance with local customs and temporary needs. A fresh effort to reform and systematize Church law was made in the eleventh century, a good example of which was the Decretum of Burchard, prince-bishop of Worms, in the first decade of the century.80 Burchard continued to 78. The first collection of canons by Dionysius Exiguus has a modern edition by A. Strewe (Berlin: 1931). Useful articles on the various early collections of canons can be found in the Dictionnaire de droit canomque. 7g. This collection, along with some minor additions, circulated in the Frankish kingdom at Charlemagne’s direction, and was known as the Dionysio-Hadriana: edited in PL 67:39—134; see Stickler, Historia iuris canonici, pp. 106—15. 80. Burchard of Worms Decretum (PL 140:537-1090). For bibliographical data see: Fransen, “Suite de Recherches,” p. 514 and nn. 1 and 2.

8o

Consent, Coercion, and Limit

employ 3. very informal approach towards his source material, howev¬ er, not hesitating to ignore the fact that particular laws had a civilian rather than a Church origin, for example, or even simply ascribing them arbitrarily to a pope, Church council, or Church father, especially St. Augustine. He also frequently altered, adapted, and edited texts in order to achieve a preferred interpretation. Another eleventh-century canonical collection of very great impor¬ tance for the history of canon law was the Decretum of Ivo of Chartres, compiled about 1094.^' Probably its most important contribution to the development of canon law was Ivo’s preface, where he offered a method for interpreting and harmonizing disparate items. Confront¬ ing the extremely formidable problems of how to handle canons of varying provenance, Ivo commented on how to unravel contradictions and arrive at a decision concerning several conflicting rules. Among other things he advised a distinction between variable and invariable laws: application of the distinction was shown to resolve many an apparent contradiction insofar as the contradiction could be resolved by dispensing in a particular case from a general but variable law'. Both contradictory rules thus can be accepted as sound; but the one is general and the other particular. Something of this distinction appeared in the views of John of Salisbury seen earlier concerning flexible and inflexible laws;82 and it is more than likely that Salisbury derived his position from familiarity with the legal theory of his day, to which Ivo would have made a great contribution, and whose general

81. Ivo of Chartres Decretum (PL 161:47ff-)- An English translation of part of the Prologue is found in Scholastic Miscellany, pp. 238—42. 82. The method of trying to reconcile conflicting opinions and texts was not exclusive to students of the law in this period, although it was peculiarly necessary in the legal field. It appears formally also in theology with Abelard’s Sic et non, generally considered to have been the prototype of the so-called scholasticism, the standard medieval methodol¬ ogy in theology and philosophy. Carlyle has a useful, if dated, summary of Ivo’s method of classifying authorities in Church law, following Augustine, with appropriate citations to Ivo’s works: Carlyle and Carlyle, Mediaeval Political Theory, 2:162—63; see also his remarks on Burchard of Worms, p. 161. Cf. Kuttner, Harmony from Dissonance, pp. 4—6. It is also worth noting that the Ivo prologue containing his advice on interpretation and reconciliation of disparate texts circulated wddely in the twelfth century as a separate treatise, entitled De consonantia canonum. Early in this century Paul Fournier identified Urban II as promoter of the distinction between general and particular (inflexible and flexible) canons: “Tournant de l’histoire de droit.” But see a later Kuttner article that identifies Ivo, rather than Urban II, as author of a text in the Collectio Britannia on which Fournier based his thesis: “Urban II and the Doctrine of Interpretation.”

Twelfth Century

81

method of textual reconciliation would have been commonplace by the middle of the twelfth century.83 4.

THE DECRETUM OF GRATIAN

I he first and most important legist to consider directly in an examination of medieval canon law’s contributions to the notions of consent, coercion, and limit is Gratian, not only because he stands at the beginning of what might be called a fully professional approach to his material, but because his success in establishing canon law on a firm and systematic basis set the whole frame of reference in which this discipline operated for centuries to come. Aptly titled “a concordance of discordant canons,” the Decretum of Gratian was written about 1140.84 It was the first really successful effort at a systematic compila¬ tion of Church law, and became the foundation of medieval and all subsequent canon law, remaining one of the fundamental collections of ecclesiastical jurisprudence, and attracting a host of commentaries, analyses, and glosses from the beginning of its existence. Only comparatively recently, however, has Gratian’s monumental work been subjected to the careful scholarly investigation needed to provide a comprehensive picture of its meaning and historical signific¬ ance outside the limits of Church law; and only in the past decade has a coherent and satisfying statement emerged concerning what its author was about. Gratian, moreover, was himself a teacher as well as a student of Church law, and he trained the first generation of canon-law specialists who developed the school of canon law at Bologna in the 1140s and 1150s, shortly after the Decretum had become the standard text in this new discipline. Among the early decretists (commentators 83. John may have known Ivo’s Decretum directly, and that of Burchard of Worms as well. He cites Cyprian Epistola 1.10 at Policraticus 1.8.406c, found in Ivo Decretum 2.31, and in Burchard Decretum 5.a 1. The same citation also appears in Gratian De consecratione D.2 c.95; but if, as is now generally accepted, the De consecratione is not an authentic part of the original Gratian text, then either John would have had to have seen the Cyprian text elsewhere, or the interpolation was made soon after Gratian completed his collection about 1240. 84. An excellent recent monograph on Gratian's work is Chodorow, Christian Political Theory. Chodorow examines the dating of the Decretum, pp. 7-12 and in Appendix I. Even though its information is sketchy and largely negative, the standard biography of Gratian is still Kuttner, “Father of Canon Law.” Cf. Noonan, “Gratian Slept Here.” The Noonan article deals at length and sceptically with much hearsay data about the Master, and the critical apparatus shows the most recent references on the subject.

82

Consent, Coercion, and Limit

on Gratian’s Decretum) was Roland Bandinelli; he became Pope Alexander 111 in 1159, and was the first of the great lawyer popes of the Middle Ages. The text of the Decretum is a massive document of some fourteen hundred folio-size pages in modern edition.85 Recent research has made it clear from comparisons between the standard printed text and its early manuscript tradition that significant additions of individually interpolated items and even of whole sections (for example, the treatises on consecration and penance) have found their way anony¬ mously into the original work.8h Similar investigations have produced a much more satisfactory interpretation of Gratian’s purpose in compil¬ ing the Decretum, with its author emerging as something more than a disinterested legal scholar having no stake in, or being uninfluenced by, the political world of his day. He now can be seen as consciously involved in efforts to the twelfth-century Church in Italy towards pressing its claims for ascendancy over the temporal powers of the day, and as a canonist whose magnum opus aimed at nothing less than establishing a basis for a Church-dominated society.8' Gratian’s success in this regard makes his Decretum one of the most significant works of political theory of the mid-twelfth century; it contains an ideal of Church government that, in the later language of Richard Hooker, can be called a genuine theory of ecclesiastical polity. In containing a theory of polity, then, the Decretum deserves attention, even though its views are only indirectly applicable to the order of the secular.88 The legal texts Gratian collected and organized, as well as his own comments on them, were intended to present a

85. The Decretum is volume 1 in the modern edition of Corpus iuris canonici, ed. A. Friedberg (Leipzig: 1879; reprinted Graz, 1959). 86. The work of Professor Jacqueline Rambaud has been crucial in this connection: Rambaud, “Plan et methode”; ‘Corpus juris civilis’”; “Divers types d abreges”; “Decret de Gratian et droit romain”; “Etude des manuscrits;” “Paleae dans le Decret de Gratien." Madame Rambaud was responsible for the list of paleae published in Histoire du droit et des institutions de Veglise en Occident, 7, L'age classique, pp. 52—129. Other scholars who have contributed to the clarification of the Gratian text are Vetulani, Kuttner, and Gaudemet. Cf. Vetulani, “Etudes sur la division en distinctions”; “Suite d'etudes I”; “Suite d’etudes II”; “Nouvelles vues sur le decret de Gratien”; Kuttner, “New Studies in Roman Law”; “Additional Notes”; Gaudemet, “Romische Rect in Gratians Dekret.” 87. Chodorow, Christian Political Theory, pp. 63—64, 97. 88. See similar remarks concerning later canonical writings connected with the conciliar movement that rightly urge caution in using essentially canonical or theological material to construct medieval political thought in Black, Monarchy and Community.

Twelfth Century

83

picture of an organized and appropriate administration for a Church society, a society perceived as a community whose purposes were spiritual rather than temporal, heavenly rather than earthly. But such a spiritual society inevitably must have a relationship with the political or temporal society in which it finds itself; accordingly, the specifica¬ tions of this relationship, or at least some of them, are likely to be addressed in developing a theory of a Church society. The focus for such specifications will be the function of the ecclesiastical polity, of course, and the details of the view presented will reflect this focus. Thus, the nature and character of temporal polity are not treated directly, with the consequence that direct questions concerning the integrity and limits of the temporal polity are likely to go unanswered because they are not directly asked. Gratian was not interested primarily in the nature of political society, in political theory as we understand that term, a point equally important when it comes to assessing the political thought of other medieval canonists and theologians. Nor was he interested directly in the problem of the relationship between church and state, although his Decretum contains much material touching on this issue, material later carefully weighed and sifted by medieval canonists and Church leaders, and by more than a few modern scholars as well for whom this problem has been of concern. But Gratian did not deal directly with the sacerdotium / regnurn problem; he was interested exclusively in aspects of an ecclesiastical constitution, and offered no explicit guidelines for any resolution of the problem of specifying the precise boundaries between church and state. The opposing theories on church / state relations that emerged in the century and a half following the appearance of the Decretum, then, may each have had proponents who claimed Gratian in support of their views; and the authority of the Gratian text was offered as justification for views that its author himself had not expressed. Items on this question that Gratian himself never cited were also interpolated into the Master’s text: the capitula in Distinction 96 dealing with the Donation of Constantine, for example, are accretions to Gratian’s original text.89 This whole Distinction and its twelfth- and thirteenth-century glosses and commentaries became extremely important material for later interpretation of the relation-

89. Chodorow, Christian Political Theory, p. 56 and p. 54, n. 53. For more references regarding the view that Gratian was concerned exclusively with the nature of the ecclesiastical constitution, see Chodorow, “Magister Gratian.”

84

Consent, Coercion, and Limit

ship between the two powers of church and state. For his own part, however, Gratian actually concerned himself only with the question of what rights a secular power had in dealing with ecclesiastical property and involving itself with ecclesiastical affairs; the larger issue of theory concerning the interaction of the spheres of the spiritual and temporal lay outside his purview. The contents of the Decretum, nonetheless, are of great interest for our purposes. They represent a massive, though necessarily still selective, effort to compile texts from Church sources dealing with the life, structure, and organization of the Christian church; papal and episcopal pronouncements, statements, letters, declarations and legal decisions composed by Church authorities of various kinds, and authoritative texts and dicta of one sort or another from the Apostolic period of the Church down to Gratian’s own day, accompanied by brief but usually incisive comments from Gratian himself by way of explanation, interpretation, and assessment. Gratian’s Concordance of Discordant Canons is obviously quite a different type of document from, and written in quite a different context than, John of Salisbury’s Policraticus, which contains an ex professo statement on the nature of temporal polity. But Gratian’s work does contain material in which the notions of consent, coercion, and limit are handled, even though the context always has to do directly with ecclesiastical rather than temporal issues of governance. Such use as will be made of Gratian’s treatment of these notions must always keep this fact in mind. As befits a treatise dealing with the law, Gratian begins the Decretum by explaining the meaning of this term; and it has been observed often that the whole introductory part of the work is simply an expanded commentary on the section of law in the Etymologies of Isidore of Seville.90 Though clearly famliar with the contemporary twelfthcentury state of knowledge of Roman law, Gratian chose to define law by using ecclesiastical rather than secular sources. He quotes Isidore to the effect that law “should be according to nature and according to custom, and suitable to the place and time of the patria, necessary and useful, as well as honest, just, possible, manifest and for the common 90. Chodorow considers the treatise on the nature of law more than the beginning of Gratian’s work; rather, it represents the beginning of a systematic effort of legal theorizing aimed at providing “adequate protection for the community against the caprices of its governors. ... It constituted the theoretical foundation for the reform program of the party with which the work was associated.” Chodorow, Christian Political Theory, p. 98. See Gaudemet, “Doctrine des sources.”

Twelfth Century

85

utility of all the citizens. 91 Gratian offers a second, earlier citation of Isidore, when he asserts that “a ruler makes law with the counsel and consent of the people,”9'2 an Isidorean text repeated by Thomas Aquinas along with Gratian’s definition of law.93 He also cites Isidore to the effect that the purpose of law is to curb wickedness and protect innocence,' reflecting the view common among medieval lawyers and theologians that laws should not attempt to cover more than the major human vices to which the majority of people are so prone that they cannot be expected to abstain without the constraints and coercion of the law.95 Gratian then acknowledges the legitimacy of variables in the law relating to differences in environment, language, customs, and institu¬ tions, a notion that subsequently became a standard feature in the formal definition of law formulated by both canonists and civilians.96 This notion, of course, can be found in the earlier Augustinian tradition as well as in Augustine himself,97 from whom Isidore likely took it; so Gratian was breaking no new ground here. It was repeated and given greater emphasis by late-thirteenth-century political think¬ ers such as Thomas Aquinas98 and John of Paris,99 both of them strongly influenced by Aristotelian as well as early Christian and Roman formulations. The same notion, obviously reflecting the same Augustinian-Isidorean authorities, appeared in Alexander of Hales, St. Bonaventure, and Matthew of Aquasparta.100 As regards the Isidorean definition, which makes reference to law as being made with “the counsel and consent of the people,” Gratian merely cited it without comment of his own;101 accordingly, there is no way of knowing precisely what the Master understood by this formula-type expression. The fact that he did cite the Isidorean text, however, 91. Isidore Etymologiae 5.2 (= 5.21). 1143b! 1, cited at Gratian, D.4 c.2. 92. Gratian, D.2, c.i. 93. Thomas Aquinas, S.T. 1 -2.90.3 sed contra-, 1-2.95.3. Aquinas cites Gratian in the first of these texts. 94. Gratian, D.4, c.i; Cf. Isidore Etymologiae 5.20. 95. The section defining law, like the whole of the Decretum, immediately became a standard text and the object of ceaseless repetition and interpretation. 96. Gratian, D.4 post c. 1. 97. Augustine De civitate Dei 19.18. 98. Thomas Aquinas, S.T. 1—2.95.3; 97-499. John of Paris De potestate regia etpapali 3. 100. Chroust, “Philosophy of Law of St. Thomas Aquinas,” pp. 13—19. 101. Gratian, D.2 c.i.

86

Consent, Coercion, and Limit

guaranteed that the notion of popular counsel and consent would receive the kind of widespread and authoritative reference that inclusion in the Decretum provided. The only formal and ex professo treatment of the notion of consent that Gratian offers in the Decretum occurs within the framework of his discussion for procedures to select a bishop.102 Reference has been made earlier to texts and practices dealing with episcopal election in the early Church, and to the involvement of the entire Christian community in the appointment of ministers and spiritual leaders.103 Reference back to the ancient sources and practices had been revived in the eleventh century as part of the Gregorian reform efforts to wrest episcopal and other forms of ecclesiastical administration back from the control of lay rulers. In the fifth century, the practice had been for each ecclesiastical province (a grouping that included a number of bishoprics or dioceses) to exercise primary responsibility for the election of its episcopal members; but the exercise of preference by the bishops of a province was not always decisive, and other persons frequently had to be consulted. The participation of the diocesan clergy and laity, as well as the consent of the metropolitan, came to be regular features in the process; and these elements, considered inseparable insofar as each was essential, were sanctioned and publi¬ cized by the papal authority of the day. As already noted earlier, Celestine I (422-32) directed that “a bishop should not be given to those unwilling [to receive him],” and stipulated that the consent and wishes of the clergy, people, and nobility were required.104 Pope Leo I (450-64) had restated this guiding principle in more explicit terms: “He who governs all should be elected by all”;105 and “No one shall be designated a bishop who has not been chosen by the clergy, accepted by the people and consecrated by the bishops of the province with the approval of the metropolitan.”106 102. A recent fine examination of medieval procedures for choosing a bishop is Benson, Bishop-Elect', cf. Gaudemet, “Participation de communaute.” This article has a useful bibliography at p. 308, n. 1. Cf. Gryson, “Elections ecclesiastiques.” 103. Part 1,6—7. 104. Celestine Epistolae 4.5 {PL 50:434). 105. Leo Epistolae 10.4 {PL 54:628); cf. Epistolae 10.6, 13.3, 14 5, 167.1. 106. “Nulla ratio sinit ut inter episcopus habeantur qui nec a clericis sunt electi nec a plebibus sunt expetiti, nec a provincialibus episcopis cum metropolitani iudicio consecrati”: Leo Epistolae 167 {PL 54:1203); cited in Gratian, D.62 c. 1. St. Cyprian also expressed the view to his clergy that his style of exercising episcopal office involved “doing nothing without your advice [consilio] and without agreement of the people [co7isensu

Twelfth Century

87

Different roles are assigned formally by Leo to the clergy, people, fellow provincial bishops, and metropolitan; and it is noteworthy that his term for people was plebs, designative of the common people rather than of any noble or privileged section of the community as a whole. The Leonine text is strongly reminiscent of a remark by Pliny the Younger that “the emperor of all the people should be chosen by all the people" (imperator omnibus eligi debet ex omnibus),‘°7 and shows just how persistent this theme was in both Roman and Christian notions of polity, and in both temporal and ecclesiastical formulations by Chris¬ tian thinkers. Elsewhere, Leo also made clear his willingness to accept the necessity of an episcopal election having the approval of the imperial power.108 Almost certainly following the text of Leo in a conscious manner, medieval writers, canonists, and theologians normally distinguished between populus and plebs. Sometimes the term populus meant all the people, the plebs as well as the nobility; but generally it was assumed that the populus was constituted of the “greater men,” the greater and better part (of the whole people): maior pars; sanior pars; maior et sanior pars.109 A thirteenth-century decretist described the distinction be¬ tween populus and plebs as follows: “The difference between populus and plebs is the same as that between animal and man, genus and species, for the nobles, and the nobles taken as a group, constitute the populus. The plebs do not find senators and consular men among them ... that is, the universus populus are those better born in respect of three elements: nobility, dignity, antiquity.”110 Full implications of the distinction between populus (the nobles) and plebs (the masses of the lower classes) are expressed graphically in the early fourteenth century by Marsilius of Padua.111 The most famous and most often cited early historical instance of plebis]": Cyprian Epistolae 14.1.2 and 4; cited in Congar, “Quod omnes tangit,” p. 226 and n. 59. Cf. Part 1, n. 91. 107. “Imperator omnibus eligi debet ex omnibus”: Pliny the Younger Panegyricus 7.6; cited in Benson, Bishop-Elect, p. 25, n. 8. 108. Benson, Bishop-Elect, p. 26, n. 22, citing Hinschius, Kirchenrecht, 2:513—15. 109. For the meanings of these various terms see Part 3, 2A, below. 110. Summa. “Antiquitate et tempore” on Decretum (Vat. MS. Palat. lat., fol. 37) D.2. c.i; cf. Inst. 1.2.3.4, cited in Post, Studies, p. 374, n. 16. The author’s point would have been clearer had he written plebs et populus, rather than the other way about; for clearly the plebs (all the people considered as a whole) is a genus of which the populus (the nobles) is a species. 111. See Part 4, ib, below.

Consent, Coercion, and Limit

88

episcopal appointment involving the people directly was Ambrose s appointment to the see of Milan in the late fourth century.112 Here it seems that the election by the clergy in a formal procedure, if indeed there were any such procedure, “coincided” with an expression of genuinely popular support and acclaim, a paradigm case as it were of what was regularly seen and referred to among medieval canonists and theologians as the ideal coming together of the essential clerical and lay elements in an episcopal election to yield full or complete consensus. Later this was called election by quasi-inspiration,113 and was recog¬ nized as the most perfect form of agreement for a Christian community, unanimity by consensus.114 The original doctrine of canonical election had become largely ignored and forgotten during later centuries, when the secular powers were accustomed to choosing persons to fill the episcopal offices in their territory. It was disregarded virtually completely in the early Frankish period, when the king exercised an almost unrestricted right to appoint bishops. But from the mid-ninth century a noticeable difference can be seen in practices in the west Frankish region. Here, probably because of greater maturity and intellectual advances, efforts can be seen to revive the ancient principles. The procedure of episcopal election by clergy and people was used for vacancies at Rheims (845), Rennes (866), Chalons (868), Tours (869), and Laon (876), which were filled in “the canonical manner.”115 The collection of canon law accepted by Charlemagne for use in his kingdom, the Hadriana (787),116 contained a set of canons on the election and consecration of bishops, one of which stipulated that a bishop was to be elected by all the bishops of his province, and consecrated by at least three of them, with the metropolitan confirming.117 Another eighth-century canoni¬ cal collection, the Hispana,118 reproduced the canons of Antioch, canon 112. The Ambrosian popular election became the standard reference point and precedent for such a procedure in medieval canonical and theological writings. 113. This was one of the three formally designated and acceptable modes of ecclesiastical election approved by the Fourth Lateran Council in 1215 (canon 24); see Moulin, “Sanior et maior pars,” p. 296. The other two forms were the compromise (compromissum) and ballot (scrutinium). 114. Moulin, “Sanior et maior pars,” pp. 369—71, 491—93. 115. MGH, Epistolae, 6:81, p. 73, II. 16—17; cited in Ullmann, “Election of Bishops,” p. 81, and n. 3. 116. See n. 78 above. 117. See article on the Hadriana in Dictionnaire de droit canonique, 5:1083—84. 118. See the article on the Hispana in Dictionnaire de droit canonique, 5:1159—62.

Twelfth Century

89

16 of which also describes episcopal election, while canon 22 of the section, titled Statuta ecclesiae antiqua, asserts that “a bishop is not to be ordained without consulting his clergy and without the approval of the laity.”119 The undoubted leader in urging canonical reforms and the revival of ancient practices in the ninth century was Hincmar of Rheims,120 who consistently held that the proper elements for elevating a bishop were the clergy and people of his diocese. Hincmar knew the law and practice of the Church, and urged his views on canonical election at the Council of Valence in 855. The council, however, approved a kind of compromise position, preserving the right of clergy and people to elect their bishop, contingent on permission to do so being granted by the king (the conge d’elire): the approved method indicated that the king was to be approached with the request that he permit a canonical election by clergy and people. The permission obtained, consultation was then to begin among the clergy and people, in order that a suitable person might be chosen “with the consent of the whole clergy and people.”121 It seems that the essential element in the election was that of consent by clergy and people: the royal permission, Hincmar always insisted, was merely formal. Later tenth-century practices, which saw aristocratic control replace the earlier royal control, thus were seen by contemporary religious authorities as deviations from the canonical norm even though they were accepted.122 By the eleventh century bishoprics again were being treated for the most part by emperors and other powerful rulers as private churches. Remnants of the old practices could still be found, however: the canonical form was followed by Cardinal Humbert;123 and it was invoked by Pope Nicolas 119. Gratian cites a canon from the Fourth Council of Toledo (633) asserting that “he whom the clergy and people of his own city have not elected, and whom neither the authority of the metropolitan nor the assent of the provincial bishops has chosen—he shall not be bishop”: Gratian, D.51 c.5. Cf. Benson, Bishop-Elect, p. 27. 120. Hincmar, archbishop of Rheims, was a person of remarkable intellectual abilities and accomplishments who wrote extensively on public government with a level of sophistication not matched again until much later. The standard work on Hincmar is still Schrors, Hinkmar von Reims', cf. Ullmann, Law and Politics, pp. 241-42, and brief bibliographical note at p. 241, n. 2; Ullmann, “Election of Bishops,” p. 83; Carlyle and Carlyle, Mediaeval Political Theory, 11230—34 and later, passim. 121. Mansi, Sacrorum conciliorum amplissima collectio, vol. 15, col. 7, chap. 7; cited in Ullmann, “Election of Bishops,” p. 85. 122. Ullmann, “Election of Bishops,” pp. 84—85. 123. Humbert Adversus simoniacos 5.5 (MGH, Libelli 51:108 and 3:6), cited in Benson, Bishop-Elect, p. 32.

9°

Consent, Coercion, and Limit

II in a papal election decree employing the precise distinction found in the earlier Leo text, which Nicholas quotes directly.124 A major ingredient in the religious reform movement of the twelfth century had to do not only with the necessity to eliminate the moral imperfections that had insinuated themselves into both the lives and administrative practices of the members of the Christian church; as well there was a perception of the need to have realized literally as far as possible the ideals expressed in the Gospels for the conduct of human life in the Christian community. Some information concerning this ideal and how the first Christians went about embodying it was to be found in the Gospels and other early Christian sources; and on the issue of appointing bishops a careful search of late-Roman church directives and practices had turned up the texts of Celestine and Leo already noted, as well as much other parallel data from earlier canonical collections. The reformers perceived their major task in reviving appropriate methods for the appointment of bishops to be the elimination of direct and conclusive involvement by lay authorities; and for this reason they moved towards the exclusion of all direct lay participation. The ideal for canonical election freshly advocated was a procedure involving “clergy and people”, with the implication at least that what was needed was the consent of all concerned: canons of the cathedral chapter, cathedral and monastery clergy, nobility, ministers, and the ordinary lay community. Gregory VII himself stressed that episcopal election should be by both clerici et populus, but he did not specify clearly how these two elements were actually to participate, and did not distinguish between their respective roles.125 The reform group as a whole tended to concede the right of the emperor (or other appropriate lay ruler) to exercise some form of consent in canonical election, but to minimize it by incorporating it with the consent of the people (plebs).126 A later development weakened lay involvement in episcopal elections even further, and even diminished the value of clerical participation. 124. MGH, Const., 1:540.382.8; cited in Benson, Bishop-Elect, p. 42 and n. 83. Cf. Leo I Epistola 10.4.6.167 (PL 54:632, 634, 1203). 125. Benson, Bishop-Elect, p. 33. See Chodorow, Christian Political Theory, pp. 201—4; Sagmuller, Bishopswahl bei Grattan. 126. Benson, Bishop-Elect, p. 40. Cf. the earlier distinction between plebs and populus. To combine the role of lay ruler with that of the common people as a whole is to reduce it in a striking fashion, and I’m not certain that would have been fully and explicitly intended by all commentators.

Twelfth Century

91

Distinguishing between office and jurisdiction produced the doctrine that only electoral confirmation conferred authority on a bishop: insistence by canonists and popes that electoral confirmation (of an episcopal candidate) was the crucial act tended to diminish the significance of any election process (regardless of what parties might participate in the election). The election was thus transformed into something through which a prelate might be chosen, but which transferred no power to him; the electors were deprived of any efficient power, for if the person elected acquired no rights through his election, the election itself was not essential except perhaps pro forma.127 Even in these circumstances, however, formal election was not quite absolutely nothing; its very retention even as a formality offered some evidence of an actual role for electors in the process. Gratian devoted three Distinctions of the Decretum almost entirely to an analysis of the issue of episcopal election, Distinctions 61-63,as well as portions of text in other locations.128 The position he took was that seen earlier in Leo I, although Gratian spelled out more clearly the respective roles of clergy and laity in the election procedure. The author of the Decretum certainly was aware of both the early Celestine and Leonine texts. He cites the Celestine text twice, at Distinction 61, c. 13 and Distinction 61, c. 26; the Leo I text at Distinction 62, c. 1. Curiously, however, he does not do so in a completely straightforward way; he quotes neither text in his ex professo treatment of episcopal election, although one might have expected him to do so. He mentions the Celestine text only in connection with the problem of diocesan clergy having preference in episcopal elections over those outside the diocese, and he does not use it in a way that invokes its contents as a general principle. Nor does he quote the portion of it stating that “all should be involved” when citing it with reference to the election of a bishop. Neither did he cite the Leonine text in this connection, at Distinction 63, c. 26 and 27. It has been suggested that Gratian was determined not to employ for canonical purposes dicta known to be derived from Roman law; hence his careful editorial work with these two texts that showed traces of the Roman maxim quod omnes tangit, a formula Gratian was prepared to accept, but not apparently to acknowledge as Roman in origin.129 Whatever Gratian’s reservations in

127. Benson, Bishop-Elect, pp. 45—55, 90—115. 128. Distinctions 60—63, esP D.63 c.7 and c.8; cf. D.23 cc.1-3; D.51 c.5. 129. Chodorow, Christian Political Theory, pp. 205-20.

92

Consent, Coercion, and Limit \

this connection, later canonists, expecially canonist-popes, had no compunction about identifying the Roman origins of the maxims they cited in support of their decisions. Gratian asserted that it was his intention to defend the thesis that “laymen must not involve themselves in any way in [episcopal] election”;130 and he provides the details of his position in his comments at D.63, post c. 25: “Laymen should not be excluded from the election ... [however, they are] not to perform the election, but rather to give consent to it. For election belongs to the priests and the duty of the faithful people is to consent humbly [by way of popular acclamation of the newly elected episcopal candidate].131” Elsewhere in the same Distinction he stated: “It is clear to everyone that election belongs only to clerics.”132 The Magister’s main point is a distinction between the right to elect, which belongs to the clergy of a diocese, and the right to consent, which is basically only a right to acclaim and belongs to the people (among whom the lay ruler is included). Gratian did not invent the distinction, which rests ultimately on the ambiguity in the term “to elect” (eligere), which can both designate the juridical action of selecting one person from many, and also be used more loosely to express acceptance or approval. Leo I had reflected this fifth-century double usage of the term when he employed it to describe the rights of both clergy and laity alike in episcopal election.133 However, Leo could and did distinguish between the “electoral” functions of the clergy (eligere) and of the laity (expetere); and Leo’s distinction was followed in the later texts of episcopal election that transmitted the early form, those of Cardinal Humbert and Nicolas II mentioned earlier. Leo’s statement had come into regular citation among the canonical collections of the late eleventh century, and was fully known by Gratian: “Electio clericorum est, consensus plebis."134 For Gratian the dominant role in canonical election must rest with the clergy, but the people, including the prince, need not be excluded 130. Gratian, D.63 c-1 • 131. Gratian, D.63 post c.25. 132. Gratian, D.63 Post c-34- Cheney notes an injunction front Deut. 22:10 used to demarcate and limit the rights of the laity generally in the medieval church—“Thou shalt not plow with an ox and an ass together”—noting its presence in Gratian, C.16 q.7 c.22 and in Decretals, 3.13.22: Cheney, Becket to Langton, p. 156. 133. Leo Epistolae 10.4 and 6 (PL 54:632 and 634); Epistolae 167 (PL 54:1203). 134. Gratian, D.62 diet, ante c. 1.

Twelfth Century

93

completely; they were to express their consent or approval by way of acclamation. And apparently this could be done either at the time of the election itself or at the time of episcopal enthronement. He seems to have been anxious to preserve some role for the people in episcopal election, but it was not to be a dominant one even though it may have been essential; Gratian is not explicit concerning the point of whether a candidate for a bishopric duly chosen (elected) by his clergy could assume office in the face of a refusal to accept him by the laity. Presumably such a candidate could not do so, following the Celestine formula that, to be a bishop, one must be accepted (invitus). What is clear, however, is that the role he assigns to the clergy is both dominant and essential, although even here Gratian’s concern is not so singleminded as to have him clarify exactly how the clerical election was to be performed or precisely which clerics are to be assigned which roles. He simply expands on Leo I: “In the Church of God, a ruler is rightly established when the people acclaim the one whom the clergy will have elected by a common vote.”135 A particular feature of Gratian’s treatment of episcopal election offers an opportunity for further analysis of his overall constitutional theory, inasmuch as that term is applicable to his views on the character of ecclesiastical polity. As insisted on earlier, Gratian presented no theory of temporal polity, as that was never his intention. However, his overall views do offer a constitutional theory of the Church; and it is possible to extrapolate from here to the temporal plane. Indeed, this is the best that can be done. Unfortunately, the feature to which we now turn shows a negative, rather than a positive, aspect of Gratian’s constitutional theory. An extension of the Magister’s doctrine of canonical election was his concern for the quality of Church leaders produced by the procedure; and such concern and its expression form an essential part of any constitutional theory and theory of law. Gratian apparently saw the need to protect the ecclesiastical community somehow against the possibility of misuse of authority by a prelate who found himself in office as a result of even the proper functioning of the election procedure. As it might be put in terms of the concepts that are 135. Gratian, D.63 diet, post c.25; cf. D.62. diet, ante c. 1. Wilks offers a good example of the traditional roles provided for clergy and laity in a text from Placidus of Nonantula Dehonore ecclesiae 37: “Sed magis communi electione clericorum et consensu populorum, maiorum scilicet et minorum, inter quos videlicet tarn reges quam principes numerantur”: (MGH, Libelli, 2:585), cited in Wilks, “Coronation and Representation.” p. 270.

94

Consent, Coercion, and Limit

the subject of this study, he perceived the need to give some kind of expression in law to the theoretical concept of limit in the exercise of authority. The legal theory presented in the Decretum, however, fails signally to provide adequate procedural protection for the community against possible caprice and abuse by its rulers. It has been contended that medieval legal theory in general did not admit of law being made, but simply of being perceived or discovered, a point of view that led some historians to a revision of the early history of English parliaments according to which these gatherings were essentially judicial and not legislative bodies.136 A careful examination of Gratian’s views in the Decretum shows that such a narrow view of the function of authority in terms of laws must be rejected; the Magister saw clearly that authority—ecclesiastical authority, of course, in the specific terms of his interests—possessed power extending to the activity of lawmaking as well as law-discovering; and he was concerned to establish a relationship between this power as exercised by given human office-holders and the contents of acceptable laws as such. Aware of the Roman legal maxim that the ruler is above the law, Gratian was not prepared to construe the formula literally when discussing the position of the pope in relation to the established laws of the Church, any more than was John of Salisbury in discussing temporal rulers.137 Gratian contended that the legislative power of an ecclesiastical ruler was restricted inasmuch as he himself was required to obey the law under ordinary circumstances.138 But in a position that gives the lie to the thesis that medieval legal theorists did not admit that the power to legislate rested in the hands of those in authority, Gratian accepts that properly constituted Church authority can make law, and that in so doing can properly go beyond the “normal” requirement that even the ruler must be under the law.139 As Salisbury did in respect of a temporal ruler, Gratian applied to the pope the famous legal maxim that the prince is above the law as well as the dictum that he is bound by

136. Chodorow provides bibliographical data on this point in Christian Political Theory, p. 133, n. 1. 137. Gratian, D.45 diet, post c. 13; cf. Chodorow, Christian Political Theory, pp. 133—35. 138. Gratian, C.25 q.2 diet. post. c. 16; cf. Chodorow, Christian Political Theory, pp. 142-47. 139. Decretum, c.25 d-1 diet, post c. 16; cf. C.25 d-2 diet, post c.21; C.22 q.4 diet, post C.23; C.22 q.4 diet, post c.23; C.25 d-2 diet, post c.21: this last text, as Chodorow points out, is similar to Bernarci of Clarivaux, De consideratione 3.4.14; Chodorow, Christian Political Theory, p. 146, n. 25.

Twelfth Century

95

the law, 4 and in so doing displayed a serious lacuna in his constitution¬ al theory. On the one hand, he argued for a restriction of legislative power in the supreme ecclesiastical ruler by requiring him to obey the laws, on the other hand, he acknowledged an exception to this rule by conceding to the pope the right to go beyond the law when legitimately engaged in the specific task of lawmaking. Gratian thus introduced into his governmental theory the essential tension between a ruler’s sovereign power to make law and the principle that he is bound by the law, a tension found in any theoretical formulation that is not absolutist in the crudest possible way. But the author of the Decretum failed to provide any specific method for expressing and resolving this tension in a meaningful fashion, any test for determining if and when the lawmaking activity of the legislator moved from the legitimate role of lawmaker, which continued somehow to reflect the limits of the ruler’s function, to that of arbitrary tyrant, or any way of redressing effectively a situation where the lawmaker becomes a tyrant. The best Gratian seems to have managed in this connection was to advise that a pope (or other “prince”) should act out of consideration for the equity of reason when granting a privilege against the general provisions of a law,141 the kind of general formulation to appear shortly also in the Policraticus of John of Salisbury and to be reflected as well in the views of another contemporary, Bernard of Clairvaux.142 The pope should exercise his power to legislate and judge in accordance with the precepts of God. But if he failed to do so (as also apparently would be 140. Chodorow, Christian Political Theory, p. 147. Gratian also taught simple inalienability for the pope, repeating a formulation of papal immunity from judicial action created by the early sixth-century forger of Constitutum Sylvestn. The text purported to be a decree from a Roman synod of 324, presided over by Pope Sylvester and the emperor Constantine. Perceived as the juristic expression of an important principle it enjoyed considerable currency, appearing in the Pseudo-Isidonana, as canon 20 in Collectio 74 titulorum, as well as in the collections of Ivo of Chartres and Gratian: Moynihan, Papal Immunity, pp. 22-23. a curious way this long-lived and influential text provides negative evidence for the prevalence of the notion of popular consent in ecclesiastical affairs: it stipulates that no one—emperor, king, cleric or the people—can judge the pope: “Nemo enim ab augusto neque ab omni clero neque a regibus neque a populo iudex [= papa] judicabitur”: Gratian, C.9 q.3 c.13. The whole issue of the medieval view on the inalienability of papal authority has received careful study in Moynihan, Papal Immunity; cf. Oakley, Council over Pope; de Vooght, Pouvoirs du concile. 141. Gratian, C.25 q.i diet, post c.16. 142. Bernard of Clairvaux Epistolae 131, cited in Chodorow, Christian Political Theory, p. 146, n. 25; Sancti Bemardi Opera, 7; English translation in Bernard, Letters, trans. Bruno Scott James.

96

Consent, Coercion, and Limit

the case for the exercise by duly elected and consecrated bishops of their authority in ways that had them acting wrongly ), those subject to his authority were still obliged to obey. In his views and wording Gratian continued the patristic tradition on this point, balancing the concept of authority (potestas) possessed by an ecclesiastical ruler with that of charity (caritas), the latter being a kind of procedural dens ex machina to keep the exercise of authority within the bounds of reason and equity, or at least to mitigate the harsh effects of any failure to do so. . Gratian’s doctrine is defective at this point; he leaves the reader of the Causa with the impression that the pope ultimately must be considered superior to the community over which he is set, and that in practical terms he is loosed from its laws. The only qualification mentioned is that members of the Church should not be asked to perform an evil action. Ultimately, the only hedge Gratian seemed to see as a guarantee against bad (ecclesiastical) governance was to ensure that good men were promoted to office. It was not until later in the twelfth and thirteenth centuries that canon lawyers began to develop a theory for controlling rulers that expressed the element of reserving some authority to the community, thus enabling it to exercise power against its governors if and when the necessity for so doing arose. Gratian’s doctrine on episcopal election may have contained the seeds of this element in constitutional theory insofar as it assigns a kind of acclamatory role to the community over which authority is to be recognized as operating in the Church, a role to be exercised as part of the election procedure, and an elective function to the clergy as well. But Gratian’s overall position is inadequate because incomplete; he offers no mechanism for either the community as a whole or for the clergy to employ in dealing with abuse of authority. John of Salisbury’s doctrine of tyrannicide is similarly inadequate in its formulation and specification with respect to the exercise of temporal authority, but it does advance the issue somewhat.

PART THREE

The Thirteenth Century

1.

THE DEVELOPMENT OF LEGAL CONCEPTS

A. Quod omnes tangit: What Touches All Decretum is only the first example we have seen of the literary products illustrating the growing sophistication in both forms of the law that began to develop in the twelfth century. This development continued apace throughout the next century as well, and had a major influence on the emergence of specific forms of juridical and political structures, especially in England, France, and the city-states of northern Italy. gratian’s

New political and legal issues and problems emerged as the increasing complexities of both church and state, and of the relations between the two, reflected the centralizing activities of both ecclesiasti¬ cal and lay leaders of the time. A number of considerations must be kept in mind here: (1) For their part, the canonists continued to present and speak for the interests of the ecclesiastical constituency; their remarks were intended to apply to that constituency, had relevance directly only in the ecclesiastical sphere, and for the most part were only indirectly relevant to political society. (2) The profes¬ sional interests of the canonical and civilian legists and of the personages they supported begin now, clearly and extensively, to diverge; the differing interpretations and theories advanced in the two legal jurisdictions illustrate this fact. (3) At the same time, however, some standardization developed in both ecclesiastical and political jurisdictions regarding procedural aspects of administration and litigation. What might be called public law developed in both church

98

Consent, Coercion, and Limit

and state; legal experts and theorists became more important in both civil and canonical legal spheres, and some uniformity of concepts and procedures resulted from the interaction of professionals and their theories in both spheres. It is important for this reason to extend the examination of medieval sources for political theory to cover the development of both legal theory and practice concerning the notion of consent. As noted earlier, the term “consent” appeared in Gratian in a reference to the need for consent by the whole people to valid laws, and Gratian himself derived it from Roman law and the texts of certain Christian writers. The period of close study and sophistication in development of basic legal notions and formulae that began in the twelfth century, however, saw a more specific question being asked in this connection: what precisely and jurisdictionally was meant by the notion of consent by the people? And as soon appeared, there is a cluster of legal terms and elements involved here, the meaning and application of which are closely connected. The issue of who, in the sense of how many persons, there are whose consent is required, is always relevant, and begins to be recognized as such. So is the matter of how persons whose consent is needed should act to express consent: do they, must they, act as individuals directly on the issue at hand; or is there some way another person can act for them singly or together? The notion of representa¬ tion appears here as crucial on a number of accounts: (1) Can one person be represented by another? (2) If so, how does the representa¬ tive acquire his status? (3) What powers must the representative have (be given) in order to represent? (4) What are the consequences for the person represented of the actions of his representative? Examination of the medieval meaning and use of the concepts of consent, coercion, and limit requires further inquiry into these issues in medieval legal thought. Perhaps the single element with the longest history of use in legal practice of direct concern is the principle that “what touches all must be approved by all” (quod omnes tangit ab omnibus tractari et approban debet), henceforth referred to simply as qot.1 The maxim appears in Gratian2 1. Fundamental research on this principle can be found in Post. “A RomanoCanonical Maxim” and “A Roman Legal Theory of Consent” and Congar, “Quod omnes tangit”; see also Post, “Roman Law and Early Representation,” “Plena potestas”; Marongiu, Medieval Parliaments, and “Q.o.t., principe fondamental"; cf. Cheyette, Lordship and Community. 2. Gratian, D.63 post c.25.

Thirteenth Century

99

and was known by him as a dictum of Roman law, although he seems not to have quoted it directly from Roman legal sources nor to have acknowledged its Roman provenance. Interest in qot had begun to develop in canonical circles as a consequence of the eleventh-century reform activities in connection with efforts to wrest episcopal election from the control of lay rulers. Bernard of Clairvaux offers an excellent illustration of the principle, as well as of his own recognition of its importance as a legal maxim, when he wrote in the mid-twelfth century to the clergy of Sens, and cited an “ancient rule” that everyone affected by an episcopal election should participate in that election.3 The maxim itself brings together all the elements in the cluster of concepts mentioned earlier: consent, representation, and the representatives’ mandate. Qot has long been known to have had considerable currency in the thirteenth century, where it was a familiar maxim in both civilian and canonical jurisprudence and texts. Its presence in the royal writ by which Edward I directed the calling of parliament in 1295 was taken by the great nineteenth-century English historian Bishop Stubbs as conclusive evidence that this gathering marked the beginning of the English parliamentary system.4 Stubbs credited Edward with having raised qot to the status of a constitutional principle, and thereby to have acknowledged a limitation on the royal prerogative. With the attention of medieval political historians thus drawn to it, the maxim q 01 became a focus for much careful examination of medieval political documents and other texts; and its appearance and use have now been noted in a wide variety of sources and contexts, so much so that the uniqueness perceived by Stubbs in the Edwardian parliamentary call of 1295 must be severely qualified. It was employed by cathedral chapters to assert 3. “Omnibus scribendum fuit de eo quod spectat ad omnes”: Bernard of Clairvaux Epistolae 236; English translation in Bernard, Letters. Cf. Epistolae 36. 4. Stubbs, Constitutional History of England, 3 vols. Helen Cam offered a recent summary of the Stubbs position: “To him [Stubbs], as to any nineteenth century Englishman, parliament stood for democracy, and its representative element was its essential feature. He sees the Anglo-Saxon Witan as the assembly of the people; the Anglo-Saxon duns Regis as inheriting its traditions and feudalism slowly broadening down to admit the representative element, deliberately incorporated by that ‘buccaneering old Gladstone,’ Simon de Montfort. Edward I, replacing the feudal by the national principle, arrived at the right formula in 1295; his son in the Statute of York defined the place of the Commons in the constitution; his grandson accepted their control over taxation. Such is Stubbs’ picture.” Cam, “Stubbs Seventy Years After,” p. 195; cf. Edwards, Historians and Medieval English Parliament.

lOO

Consent, Coercion, and Limit

their rights to attend provincial councils, and was so confirmed by Honorius III in 1225-27;5 Matthew Paris used it about 1240 as the basis for asserting the rights of archdeacons to be consulted before the higher prelates of England could grant a subsidy to the king;6 it appeared as a regula iuris in the Liber Sextus issued by Boniface VIII as a compendium of canon law;7 and it was the basis for his antagonist Philip IV’s summons to the French estates general of 1302,” as it had been earlier for Frederick II’s call to the cities of Tuscany in 1231 to send nuntii with full powers, and later the same year for his request to the commune of Genoa to send representatives to a meeting in Ravenna: Frederick is the first secular ruler known to have applied q 01 by summoning proctors with mandates.9 Even earlier, in 1200, Innocent III had summoned proctors to his curia from six cities of the March of Ancona; and he called a form of assembly again in 1207.10 After mid-century this procedure was continued in both the Kingdom of Sicily and the Papal States, and became common also in Spain, England, and France.11 The principle of qot itself can be found in the Justinian Code of 531, where it is invoked as a maxim of private law in respect of joint interests in a single issue: “What touches all similarly is to be approved by all” (ut quod omnes similiter tangit, ab omnibus comprobetur).12

5. X 3.10.10, cited in Post, Studies, p. 325, n. 253. 6. Matthew Paris Chronica major 4.57, cited in Post, Studies, p. 325, n. 254. 7. See n. 58, below. 8. Post, Studies, pp. 149, 165, and 166, n. 4. The references in nn. 5—8 are cited also in Post, “A Roman Legal Theory,” p. 66, an article that is the best summary statement of Post’s general thesis on the medieval legal meaning of consent. It is not reproduced in Post, Studies. 9. For the Tuscany meeting see MGH, Leg. 4.2.151—4; for the Ravenna meeting see MGH, Leg. 4.2.155; Huillard-Breholles, Historica diplomatica, 4:266; and the Annates of Bartholomaeus Scriba in MGH, SS. 18.177—79. On representation in Frederick’s southern kingdom see Calisse, Storia del parlemento in Sicilia, Appendix, 43 and 46; Marongui, Istituto parlementare, pp. 123-27; cited in Post, Studies, p. 89, n. 113. 10. Theiner, Codex diplomatics dominii temporalis Sanctae Sedis, 1142—43, cited in Post, Studies, p. 86, esp. nn. 102, 103. 11. Post, Studies, pp. 89—90. 12. The terminology in the formula varies in both Roman Law and medieval canonist and civilian repetition and interpretation. Sometimes comprobetur in the original Justinian text becomes vocandi sunt; sometimes approbetur; sometimes consentietur; sometimes the similiter becomes equaliter: see Post, Studies, pp. 168—80. Other Roman precedents that came to be associated with q 0 t are found in Dig. 10.2.27, 10.2.48, 11.1.1, and 39.3.9.1; Cod. 5.51.5; and especially Paulus’s statement in Dig. 42.1.47. See

Thirteenth Century

101

The issue for an understanding of the history of medieval political thought in respect of q o t, then, is not so much to discover its incidence of use, as to discern what its users understood the principle to mean. On its face the directive in a political document that “a matter affecting all should be considered and approved by all” appears as ready evi¬ dence of the constitutional principle that the people as a whole must be consulted and must approve legislation on any issue that affects them all. But was this its meaning in the medieval period? Certainly the notion of consent was a fundamental element in feudal society; the whole theoretical and legal fabric of feudalism rested on the concept of voluntary agreement between persons in respect of mutual services to be rendered. However, there was no feature of representation in the basic feudal relationship. The magnates and monarch of England who signed the Magna Carta in 1215, for example, consented to its terms/3 but in doing so they did not represent anyone or anything: they agreed in and for themselves. Consultation was also an essential element in monarchical and other forms of ruling practice in the Middle Ages, being an integral feature of both feudal and ecclesiastical law, as well as reflecting an element embedded in centuries of custom/4 As formulated in one specific text in the Roman civil code, qot laid down the rule that when several individuals had joint and indivisible rights or interests in a given matter, their joint administration could be ended only with the consent of all the individuals concerned/5 The principle of qot was in general use in Roman law, however, and had specific applications that varied somewhat from the one just noted. Another section in the Justinian Code stipulated that consent of all those having an interest must be obtained: for example, all those to whom joint water rights are due from the operation of an aqueduct must consent to any issue involving the aqueduct/6 The code also held Mcllwain, Constitutionalism, Ancient and Modern, pp. 48 ff.; cf. Post, Studies, pp. 170—71. Post cites and quotes six texts on qot from Roman sources: Cod. 5.59.5.2, Dig. 39.3.8, Cod. 11.59.7.2, Dig. 42.1.47, Dig. 11.2.1, and Dig. 11.2.2 (Post, Studies, p. 221), and cites a number of others: Dig. 39.3.9.1, Dig. 21.1.13.5, Dig. 40.9 30.4, Dig. 42.1.36.39, Dig. 50.1.19 and 160.1, Dig. 11.2.1, and Dig. 11.2.2. (Post, Studies, pp. 169—75). 13. See William S. McKechnie, Magna Carta. 14. An interesting illustration from early-thirteenth-century England is the muchdisputed speech attributed to Archbishop Hubert of Canterbury on the occasion of the “election” of King John: see Statesman’s Book, pp. xlviii-xlix, quoting Matthew Paris, Chronica major, Rolls series, 57.2:454 and 455. 15. Cod. 5.59.5.2. 16. Ulpian, Dig. 39.38; cited in Post, Studies, p. 169, n. 10.

102

Consent, Coercion, and Limit

that a judgment falls equally on all the plaintiffs or defendants having a joint interest as parties to a given case.17 What the Roman legal maxim qot asserted generally was that the rights and interests of all the individuals combined in a joint matter or “thing” must always be taken into account in a manner consistent with their interests in the joint matter. 1 his did not always mean that individual voluntary consent from each of the individually concerned parties was necessary for the joint matter to be disposed of. Sometimes this specific form of consent was necessary, but sometimes it was not; the precise character of the relationship the individuals had to the joint matter determined what was required of each of them in terms of consent. “What touches all must be approved by all,” then, did not always mean in Roman law that no action could take place on a matter of joint or common interest without the specific individual consent of all parties concerned. What it meant, rather, at least in terms of what might be called its common-denominator meaning across a broad spectrum of use, was that all persons jointly concerned in a matter had to be given a hearing and offered an opportunity for defence of such rights and interests in that matter as they possessed. As a minimum it guaranteed access to the courts for anyone having an interest or right (ius) in a given matter, as well as the right to be heard. The revived interest in and study of Roman law in the twelfth century had led to the rediscovery of this maxim; and the imagination and ingenuity of the new breed of medieval legists put it to use in a wide variety of civil and canonical legal issues. The formula qot was known to Gratian in its Roman origins, as already mentioned; he made reference to it several times, although not specifically with respect to the role of the people in expressing consent. For his own reasons Gratian seems to have suppressed any reference to the maxim coming from Roman legal sources, just as he was inclined to do whenever he used other elements from Roman law. And when he did employ qot n was not in connection with his advocacy of the role of the people in expressing consent (in the matter of episcopal election). Gratian’s use of the maxim was with reference to issues of joint clerical concern, administrative and jurisdictional. The prevalence of citation of qot by many canonists and legists subsequent to the appearance of Gratian’s Decretum has long been 17. Ulpian, Dig. 3.3.31.1,3.5.30.7; Cod. 3.40: Wenger, Institutes of Roman Law, p. 89; cf. Yves Congar, “Quod omnes tangit,” p. 211, nn. 3 and 4.

Thirteenth Century

103

known, as has the prevalence of its use in ecclesiastical court procedures as early as the middle of the twelfth century. No particular significance has usually been attached to these data, however, some historians having been inclined to ignore the evidence or dismiss it as involving little more than a rhetorical flourish.18 The frequency and form of its use in this period, nonetheless, require more careful consideration. When adjudicating an issue involving the appointment of a rural dean. Pope Innocent III used q 01 directly; he held that deans should be appointed with the joint consent of bishop and archdeacon, inasmuch as a dean's responsibilities and authority relate to both these offices.19 The same pontiff also quoted qot explicitly elsewhere, noting that it had the authority of a Roman imperial judgment. He observed, in a letter to the Latin patriarch of Constantinople in 1206, that the very nature of law, itself a postulate of justice, stipulated that nothing should be decided to the prejudice of anyone who had been neither summoned nor convicted nor absent by his own fault.20 Innocent had been trained in the law at Bologna, and illustrates here a commn tendency among twelfth-century canonists to use Roman law almost as an auxiliary to canon law, referring normally to the authoritative character of the laws of Justinian. A gloss of the period 1210—14 on one of Innocent’s decretals, relating to a case involving the archbishop of York and the rector of a hospital, refers directly to two locations in the Justinian Code where qot is expressed, although the text of Innocent did not quote the maxim directly.21 Johannes Teutonicus in a gloss written about 1 217 on another Innocent III decretal also invoked the maxim directly.22 St. Bernard of Clairvaux shows that the maxim was known and in use in ecclesiastical affairs in the mid-twelfth century when he wrote about 18. Pasquet, Origins of House of Commons, pp, 25, 173 ff \ Petit-Dutaillis and Lefebre, Studies and Notes, p. 345; White, Making of English Constitution-, Pollard, Evolution of Parliament, p. 59; Jolliffe, Constitutional History of England, pp. 349 ff.; Riess, History of English Electoral Law, p. 2 and n. 4; Adams, Constitutional History of England, p. 186. Post offers a survey assessment of other earlier interpretations of qot'. Studies, pp. 166-67. 19. X 1.23.7, cited by Post, Studies, p. 171, n. 26. Cf. Gratian, C.7 q.ioc.i. 20. X 1. q.33, c.8; cf. Gratian, C.8.10.1.33; cited in Post, Studies, p. 171, n. 25. 21. The gloss quotes the maxim as “omnes enim vocari debent quos casa tangit.” and cites Cod.5.59.5.2 and Dig. 39.3.8. The gloss itself is on X 2.28.48, and is found in the Apparatus to Compilatio 3.2.19 (De appellat.) c.6, ad 5, cited in Post, Studies, p. 172, and n. 27. 22. “Omnes illi quos res tangit vocandi sunt,” supported by Teutonicus with a reference to Paulus, Dig. 42.1.27, cited by Post, Studies, p. 172 and n. 28.

104

Consent, Coercion, and Limit

1143-44, apropos of a controversy surrounding the appointment of William Fitzherbert as archbishop of York, that “everyone involved in an issue should have been consulted” (omnibus scnbendum fuit de eo quod spectat ad omnes).23 Innocent IV, undoubtedly the most distinguished of the medieval canonist-popes, commented on a decretal of Alexander 111 that “agreement by all who are touched by the matter is necessary in the consideration of the matter as well as in its voluntary disposition.”24 Representative samples from both canonist and civilian sources of the twelfth and thirteenth centuries exist in ample numbers to show the currency of qot and the developing tendency to apply it in a variety of ways. Legists and canonists at this time brought the Justinian maxim into use over all kinds of several-joint-, and common-rights issues, and applied it imaginatively to different issues: the rights were individual rights, with individual consent indispensable if any change were to be made, when the matter pertained to all severally, as when several persons had an easement, or when two or more prelates or administra¬ tors had administrative rights in common, or when several individuals or corporations (or individuals and corporations jointly) had rights to patronage or presentation.25 A formal legal maxim containing the element of consent underwent gradual development and application. The civilians and canonists formulated as a general maxim that every kind of legal right (ius) was accompanied by the right of consent. An early thirteenth-century decretist asserted that “the consent of all is required whose right (ius) may be taken away,” meaning that consent is required of all who have any power or authority in respect of the matter involved.26 The great English canonist and civilian jurist at Oxford, William of Drogheda, referred about 1239 to the Digest texts on servitude to support his view that if a proctor is appointed in the presence of a judge, the judge’s consent as well as that of the litigants was necessary.27 But what was the nature of this “consent” that was required? It seems that while consent was required from all who had rights in an issue, the 23. Bernard of Clairvaux, Epistolae 236, in S. Bemardi Opera, 8. 24. Innocent IV in Apparatus on X, 1.36, cited by both Post and Congar. For other instances of medieval usage of qot see Post, Studies, pp. 171—80; Congar, "Quod omnes tangit,” pp. 189-96. 25. Post, Studies, p. 175. 26. Post, “A Roman Legal Theory,” p. 69. 27. Post cites a number of instances where William employs q 0 t and quotes its Roman sources in Studies, pp. 192—96.

Thirteenth Century

105

nature of the consent required might be different as the relevant rights in an issue might differ. There could be different rights in respect of different parties to the same issue. Consent, then, need not be equally shared, even though it might be commonly shared. The significance of consent in this legal context seems to have been procedural at base. The legal activity that began with respect to matters involving common and several rights and the consent appropriate to them occurred both on continental Europe and in England during the latter half of the twelfth and the early thirteenth centuries. But it also had begun by the end of the twelfth century to extend into the sphere of corporate and community rights as reflected, for example, in the growth of English common-law procedure. It was long the practice in England for every hundred, vill, and borough to send representatives to the county court, and apparently a vote of taxes sometimes was made there. The oldest unit to be represented in English administrative practice was the vill, in 1110; the shire and the hundred were accorded representation in 1166, and the cathedral chapter in 1226. Hence, this concession of the right of representation in England precedes the actual adoption of the qot formula.28 In addition, there was the purely procedural sense in which four knights of the shire represented the county court when they carried its record of cases to the king’s court. This latter practice was not corporate representation as such, but merely part of the administrative machinery of late-twelfth-century English government. But shortly the system acquired new significance, and the notion of these knights actually embodying the element of representation of the rights of the knights of the shire as a community, and as such conveying it to the king’s court, began to emerge.29 Thus, the meaning of consent in respect of community or political rights is inextricably bound up in this period with the history and character of civil and canon law. Of course, there is a sense in which the principle of consent in association with rights is a natural and relatively ubiquitous feature of any society, discernable in primitive as well as in sophisticated forms of social organization. The phenomenon of affording the right of consent in some fashion to the community as a whole existed in early Christian communities regarding the choice of leader, as we have seen;30 it has been observed, too, in Jewish history and in early Celtic and Germanic 28. Cam, Law-Finders, pp. 168—69. 29. Post, Studies, p. 200; cf. Plucknett, History of Common Law, p. 140. 30. See Part 1, 6.

io6

Consent, Coercion, and Limit

tribal societies. It can be found in a more specified form in eaily Frankish private law, where the consent of all of sevei al occupiers of a piece of land was needed for a new settler to be admitted;3’ and also in an informal but trenchant fashion in the demands of the revolting Norman peasantry in 997.32 Law and custom in the feudal period of western Europe also protected many types of joint and common rights. Development of the Christian concepts of community and of the Church as some type of a unity in which all its members shared a “mystical body,” in St. Paul’s phrase, also must have contributed strongly to the concern for how the Church s members might express themselves and participate freely in its reality. Many factors, then, lie behind the medieval impulse to give expression to the element of consent as an essential feature of organized society; and it would be a mistake to single out only one to explain the particular meaning and form the element took in this particular era. Nonetheless, the particular legal developments that did occur in the twelfth and early thirteenth centuries provided a form through which the notion of consent could be given meaning, and greatly stimulated efforts both to give it expression and to specify its meaning. Such activity occurred in both ecclesiastical and temporal spheres, in both of which centralizing political and administrative pressures were very apparent. Cross-fertilization of legal and adminis¬ trative concepts and procedures was common, and much more widespread than many earlier medieval historians have been prepared to recognize and acknowledge. The Roman legal maxim q 01 had been in use in the medieval Church in the twelfth century in respect of canonical appointments to church office and as a general legal principle. Its value in developing and reinstituting proper procedures for the canonical election of bishops has already been mentioned.33 It can be seen, too, as a principle at work in the group activity of the Church as a whole, where the issue was the rights of the individual and protection of personal liberty: decisions by a group (collegial or corporate person) only applied to the individual members of the group in respect of their personal goods and obligations to the extent that such decisions had been approved by each 31. Kuebner, “Settlement and Colonization,” p. 34, with reference to the Salic law, Titulus de migrantibus, p. 45. Cf. Post, Studies, p. 181 and n. 56. 32. William of Jumieges, Gesta Normanorum ducum, pp. 73, ff., cited in Richardson, “Origins of Parliament,” p. 176, n. 2. 33. Part 2, 4.

Thirteenth Century

107

and eveiy one of them.3*1 A useful distinction was soon formulated between what touches all as individuals (ut singuli) and what touches all as members of a group ( ut collegiati). In cases of the former the consent of each individual was required in respect of what touched his individual rights. In cases of the latter only the consent of the collegial whole was required, although each individual member of the whole must be able to exercise his rights of membership in the whole: for example, by being summoned to the corporate consideration of the matter and by being able to participate through voting in the group decision, which might then carry by majority vote with the dissenting voters bound by the majority group decision. The maxim qot can also be seen in the conciliar activities of the thirteenth-century Church, and historians have been right to see it and its importance in the letter Vineam domini of ig April 1213, by which Innocent III invited participants to the Fourth Lateran Council,35 and wherein he asserted that he wished to convoke an ecumenical council according to the practices of the early Fathers to discuss serious matters concerning the common interest of all the faithful. Precedents for this manner of convocation can be found in the twelfth century, of which the calling of the Third Lateran Council by Alexander III in 1179 is only one example.36 It was at the latter, as well, that the Church formulated the position that clerics could not be subject to taxation by any temporal authority unless they consented to be so taxed (quod omnes tangit ab omnibus approbari debet, with a clerical twist!).37 Significantly, the maxim was seen to be applicable to monetary exactions on the clergy from ecclesiastical powers as well. Innocent III was the first medieval pope to conceive the idea of following temporal rulers in the tendency to impose taxes on the clergy; he considered a general levy for papal curial needs, but never implemented his plan. In fact, the medieval papacy was never markedly successful in levying taxes on its own clergy; and one of the bulwarks regularly mounted by the clergy in defence of their financial autonomy vis-a-vis the papacy was the invocation of qot. Not even the papacy had the power to levy taxes by unilateral decision. Such an action touched all (and all individually, in some sense); therefore, approval by all was required, that is, free consent by those being taxed. Pope Honorius III attempted 34. Congar, “Quod omnes tangit,” p. 215. 35. Ibid., p. 215, and n. 22. Cf. Foreville, Representation et taxation du clerge.” 36. Congar, “Quod omnes tangit," p. 216, and n. 25. 37. Ibid., pp. 217-18, and n. 29.

io8

Consent, Coercion, and Limit

to levy a general tax on the clergy through the bull, Super muros Jerusalem, of 28 January 1225; but when his legate presented the papal directive to the synod of Bourges on 30 November of that year, he was met with a formal reply from the assembled French clergy that they were astonished not to have been consulted on this matter which is of special interest to us, and about which agreement by one individual or another would count for nothing since the matter touches every¬ one. . .”38 A papal legate sought a levy of 1 per cent of clerical revenues on behalf of the papacy at a French church council held in Paris on 8 November 1263; the bishops in council refused the papal demand, and then proceeded to grant a much lesser amount. They asserted that “the prelates concerned agreed voluntarily [to make a grant of money] and not from any requirement to accept the subvention specified for the Holy Land in the lord pope’s letter, not out of any coercion, but freely.”39 A similar example of English clerical recalcitrance based on q 01 can be seen in the Council of Westminster, 13 January 1226.40 (Jot had obvious value in connection with opposition among potential taxpayers, and was used for their own purposes by both clerical and lay taxpayers as a defence against calls on their purse. It was also highly useful as a procedural maxim in ecclesiastical jurisdic¬ tional and administrative issues, and had been so used from at least the middle of the twelfth century. By the thirteenth century it was beginning to assume the character of a general principle. What did its users understand it to mean? The maxim qot was used from the time of Innocent III in two different senses, to address two distinguishable issues in the area of legal theory and practice. On the one hand, and consistent with its original formulation in Roman civil law, it embodied a principle of legal procedure, guaranteeing in effect that at a minimum every 38. Ibid., p. 218, and n. 32. 39. Cited in Gaudemet, “Aspects de legislation conciliare.” Post cites a similar incident concerning the French clergy’s objection to a papal demand for taxes to support a war in 1264; in this case, however, the objection failed: Post, Studies, p. 147, n. 181; cf. Congar, “Quod omnes tangit,” p. 215; Foreville, “Representation et taxation.” 40. Congar, “Quod omnes tangit,” p. 219, citing Matthew Paris at n. 35. See also the English clergy’s objection to papal assessment without invoking qot, at London, 1245: Councils and Synods, p. 3gi. A good summary of the meaning of consent involved in English royal efforts to develop a system of public taxation in the twelfth and thirteenth centuries is Harriss, King, Parliament, pp. 3-159; a bibliography on the origins of medieval public taxation is at p. 3, n. 1. Cf. Foreville, “Representation et taxation,” for an early French example of the clerical tax issue.

Thirteenth Century

109

individual affected by a matter under litigation had a right to be summoned to and heard in any court exercising jurisdiction over the matter at issue. On the other hand, it was seen to reflect at least something of the character of a general principle advocating consulta¬ tion and consent in some formal way from all those whose interests were an issue in a public or community matter. The examples of the maxim already mentioned fall largely but not exclusively into the first category of procedural meaning and interpre¬ tation. Some of the actual instances of its use that have been cited are sufficiently ambiguous in meaning to make it difficult to place them exclusively in either of these two categories of meaning. The element of procedure is seemingly always present, but the more general meaning may be present in some of the documents as well, although less clearly so. In fact, the ambiguity of meaning may well be present in the documents and in the historical circumstances themselves, with differing parties to the issue assuming different interpretations of qot. In instances where there is a conflict of interests the parties in conflict often tend to construe things differently and to their own advantage. It is sometimes very difficult to know precisely what qot meant in a given medieval context. Its formulations and applications in the thirteenth century have been analysed very carefully by Gaines Post, who summarized the legal activity surrounding the maxim with the conclusion that the thirteenth-century lawyers borrowed and fused together three notions that freed the classical meaning oi qot from its narrow application to consent in the procedural aspects of the private law of joint rights, and made it applicable to the government of communities. The three principles were: (1) the right of the majority in a corporation or other community to determine an issue even in the presence of a dissenting minority; (2) continuance of the classical procedural principle that made consent by all who had interests an intrinsic feature of due process; (3) subordination of consent, both of individuals and of the majority as well, to the idea of corporate, community, or common good—the public welfare, of which it was acknowledged that the ruler was the sole protector and judge.41 So interpreted, at least in terms of the legal theory it conveyed in the thirteenth century, qot was something less than a constitutional

41. Post, “A Roman Legal Theory,” pp. 71-73. The distinction between the king as a person and the Crown, found in both Glanville and Bracton, certainly qualified the view that the ruler was the sole judge of the common good, at least in England.

1 io

Consent, Coercion, and Limit

principle providing limitation on the royal authority by requiring actual popular consent through representatives of the people to royal decisions. According to theory, at any rate, what constrained or limited the king’s activities was the traditional limitation of his being bound by the law; it was the law that required him to summon all those in his kingdom who had an interest in the issues of state or who would be affected by royal actions in respect of these issues. The ruler had long been required by private feudal law to consult and obtain the consent of his barons to measures that affected their interests; there was nothing new on this front in the thirteenth-century theory of qot, except perhaps the improved specifications for how this consent was to be asked for and expressed. The theory of summoning and the consenting, then, did not reflect a developing notion of the political sovereignty of the people; it reflected a specific instance of the king being bound by the law. And it seems that a further legal concept was being fitted alongside this traditional element of the king having to obtain consent for all extraordinary measures he wished to undertake and that “touched all”; namely, that the king as embodiment of the common good, as regent of the polity standing in the place of the whole community, had a peculiar and unique responsibility for the state of the kingdom as a whole.42 Roman law had held that any important matter touching the state of the realm touched the king and was his business, and that the public business of the ruler in his public office was sometimes the business of the people as a whole (populus).43 In this position his judgment was unique and not to be gainsaid; the king was superior in authority here both by law and by tradition. Accordingly, the consent of those he was obliged to call to his parliaments had to be construed in the light of the king’s ultimate authority over matters of state; it might mean merely that the king was required to call “all who were touched”; it might even mean that those who were called had an obligation to appear; it might mean further that, having been called, those who were called had the right to state what their interests in the matter were, and perhaps the right to object to the king’s proposals; but the theory did not encompass the right of those called to deny the king his requests. Feudal law afforded the barons the right to deny any request going beyond the limits of their

42. See Post, “Ratio publicae utilitatis;” Studies, pp. 310—414. The latter section of Studies offers a detailed examination of the concept of the royal prerogative considered as superior to other interests because related to the common good, society as a whole. 43. Cod. 6.51.1.

Thirteenth Century

111

feudal contract; and presumably this ground could be claimed by the king s subjects in insisting that their consent was required. But the theory here envisaged a role for the ruler involving more than that of superior party in a personal contract: the notion of the ruler as protector and judge of the common good was a thrust towards the non-feudal concept of sovereignty. The theory may well have run this way; the case for so interpreting the legal history of western Europe in the thirteenth century is both intriguing and plausible. But political realities seldom move only on fuel from theoretical sources. Practical realities such as the interests and determination of the personalities concerned, as well as the actual circumstances themselves, are factors often at least as significant. B. Representation There is another important theoretical question as well, which bears on the meaning of consent as an element of popular sovereignty. Those called to a parliament or estates general in a public and “political” application of the maxim qot in some sense can be recognized as “representatives.” But of what are they representative; precisely what does the notion “to represent” mean here? Another exigesis on medi¬ eval terminology and its meaning is called for.44 The notion of representation is closely associated with the element of popular consent in many forms of democratic polity. This is particular¬ ly true in respect of modern democratic representative theory, where it is accepted as virtually self-evident that a direct form of democracy, where every individual citizen has the right and the opportunity to participate in legislative decision making, is simply not feasible in the large constituencies that are a normal feature of today’s states. A certain nostalgia may still reside in some democratic imaginations for the recreation of a dimly remembered and often distorted impression of the meetings of all the citizens in the agora of a Greek city-state, each speaking his mind and each casting a vote on the issues under dis¬ cussion. But however attractive to the memory and imagination, such scenes are recognized as things that can never be in the present: the people in a modern polity are simply too numerous, and hence the notion of getting them all together for discussion and decision making is unrealistic. 44. Documentation on the medieval conception of representation is also voluminous, although frequently the same bibliographical data refer also to the q 0 t dictum: see n. 1 above.

112

Consent, Coercion, and Limit \

Mechanisms for the working of many modern democratic forms of polity, accordingly, come equipped with some method by which the people are “represented” in the activities of legislating and govern¬ mental decision making. Only some, relatively few, citizens actually engage in the practice of government; the exercise of governmental authority, nonetheless, is held to be democratic because all the people still express themselves indirectly; they elect those who govern. The people consent to being governed by a relatively small group of law¬ makers who represent the people as a whole. Citizens of a democracy, so the theory goes, are governed by the persons they choose to repre¬ sent them; they consent to being ruled by persons they themselves choose as their representatives. So closely are the notions of consent and representation woven together in a modern theory of democratic polity that it is often difficult to disentangle one from the other. But if consent and representation are nowadays closely connected and understood in terms of one another, this has not always been the case throughout the history of the development of political systems. For this reason, just as it was necessary to examine the notion of consent in its medieval meaning and use, the same must be done for the concept of representation and for the issue of the correlation between the two. Not surprisingly, the use and meaning of the notion of representa¬ tion exhibits a similar history to that of consent. Its meaning, and more specifically its meaning and use in connection with the sort of notion that comes almost automatically to the mind of a modern student of political theory, developed only slowly during the medieval period. The rather precise and technical meaning almost unconsciously connoted by the modern term was not present in the earliest instances of its use among medieval writers, simply because the notion of one person standing in place of another for the performance of public acts was not a commonplace one. Again it was the development and ex¬ pansion of the study and practice of law in the twelfth century that was responsible for the development of the concept of representation; and again it was the canon lawyers rather than their civilian counter¬ parts who led the way. As we have seen, the Church underwent considerable administrative expansion and centralization throughout the twelfth century; and, accordingly, it was within the Church that there was an increasing need for the development of procedures to ensure uniformity and equity across distance. As the medieval Church reactivated its perception of the value of an organized and centralized ecclesiastical society in the

Thirteenth Century

3

H

aftermath of the Gregorian reform movement, and as the conse¬ quences of this revitalizing activity spread throughout western Europe in terms of church expansion, there was a need for the Church as a religious community to develop a means of expressing itself as a whole, as well as the need to develop practical methods for the administration of this burgeoning and increasingly complex social institution. The serious beginnings of sustained efforts to exercise political control over large geographical areas, especially noticeable in England in the twelfth century, also stimulated the development of instruments and institutions for the exercise of a centralized public administration. Feudal and Germanic law had made it difficult for any but principal parties, administrators of communities, and feudal lords to function in court; and when they did so they seem to have acted directly for themselves, that is, they offered consent (or otherwise) directly and on their own behalf as the persons involved. The revival of Roman and canon law acted as both cause and effect to the growing sophistication in secular and ecclesiastical administrations, and produced a develop¬ ment of concepts and procedures that superseded the limited charac¬ ter of feudal law. These new concepts eventually made possible the articulation of a new theory of polity. Roman law also contained maxims that gave specification to vaguely retained notions of political authority residing in the community as a whole and passing to the ruler through some kind of consent. Thus, the notion that somehow power rested on a collective base, never wholly lost through the early medieval period because of various stimuli available from both Christian community traditions and Germanic sources, received support from formal legal authorities of standing, and became an object of interest to both canonists and civilians. Not that the Roman sources offered an unmixed and uniform set of maxims for the education and edification of medieval students of law. Alongside the dictum that political authority derives from the people ultimately and the principle of quod omnes tangit, for example, one can also find the lex regia, interpreted to mean that the people had permanently ceded all power to the ruler.45 It was to be some time before these various and apparently conflicting dicta on the nature of temporal political authority and the place of popular consent in it were reconciled in a formulation expressing a modern representative theory of democratic polity. 45.

Dig.

1.4.1.

4

U

Consent, Coercion, and Limit

In addition to qot, two other Roman-derived concepts came gradual¬ ly into play in the realm of medieval private law, with implications and advantages that were then extended widely in both ecclesiastical and temporal jurisdictions. They were the concept of corporation as a collective or corporate entity (universitas)4h that itself could be consid¬ ered a person, and the concept of proctor or procurator (procurator) as an individual able to embody, represent, function in place of another (first, another individual but very soon a corporate person as well).47 When these two notions came fully into play, and the meaning of representation was given a base in the individual rights of all members of a political society, the theory of modern parliamentary democracy with its employment of elected representatives possessed of legislative authority became fully coherent. The concept of corporation or universitas developed slowly in the late twelfth century, the term itself being used to designate something other than the person of feudal and Germanic law who had been id¬ entified simply as a real individual. A corporation was a fictive person, a group of individual persons having a common interest; the corporate person or corporation was then conceived of as the seat of the rights and interest of the community as a whole. The concept of proctor was simply that of one person functioning on behalf of another; and as one might expect it came into use first in terms of one real person acting on behalf of another real person. Only with the development of the notion of corporation as a person could the concept of proctor be applied to corporate person; and only then could the notion of a corporate entity being “represented” by a single individual begin to acquire meaning. Until about the middle of the twelfth century there is little evidence in legal literature to indicate the use of the notion of proctors, and what evidence there is shows an application of the concept in terms of the representation of individual persons only. Gratian apparently was familiar with the function of proctor only as an agent for real individuals and individual churches, not for corporations. But very shortly thereafter examples begin to appear among the canonical jurists of reference to proctors as legal representatives of corpora¬ tions.48 It was through the activity of the decretists working in the second half of the twelfth century that this procedure concerning 46. Paris: 47. 48.

See Post’s research on the development of corporate identity at the University of “Parisian Masters Corporation.” See Post, Studies, pp. 61 —162. Ibid., pp. 56, 63.

Thirteenth Century

115

corporations and representation, the origins of which the canonists had found in Roman legal principles, was given widespread applica¬ tion in ecclesiastical courts. More important than the theoretical formulations involving these notions, however, was the extensive application to which they were put. The mid-century activities of Pope Eugene III (1145—53), contemporary of Gratian, Bernard of Clairvaux, and John of Salisbury, and himself thoroughly trained in both Roman and canon law, encouraged the dissemination of Roman legal principles of this sort. By the end of the twelfth century another papal expert in the two laws, Innocent III (1198—1216), was making widespread use of ecclesiastical corporations and proctors in canonical practice; and canonists of the period became very active in applying and expanding the notions of corporation and proctor to a wide variety of ecclesiastical litigation and administration.49 The last third of the twelfth century also saw the appearance of references to corporations and their representatives become much more common in both laws. Civilian as well as canonical jurists began to adapt the Roman procedure to both secular and ecclesiastical courts, although practical acceptance of the new notions and the more sophisticated procedures seems to have been slow. The practice of corporate representation was almost non-existent before 1150; and it was not in common use except in the Church until the last quarter of the century, even in Italy.50 But after the first decade of the thirteenth century, the system of corporate representation by agents given full powers grew steadily. Innocent III played an important, if not original and decisive, role in adapting the new method of representing communities in ecclesiastical and secular assemblies. The Italian communes in this way became familiar with a breadth of legal experience, formulae, and procedures developed by legists and canonists that enabled them to give constitutional expression to their developing political forms; and other temporal jurisdictions began to show evidence of similar benefits throughout the thirteenth century.5' Development of a system of proctorial representation for corporate communities lay behind the thirteenth-century examples of the calling of great assemblies in both ecclesiastical and temporal jurisdictions. But what did “representation” signify in these circumstances? The concept of representation needs also to be understood in its medieval 49. Ibid., pp. 66-67. 50. Ibid., p. 68. 51. Ibid., p. 88.

116

Consent, Coercion, and Limit

context, for it is another of the essential elements in a modern theory of parliamentary democracy. This means that it must carefully be connected with, but at the same time distinguished from, the two notions of corporation and proctor. For there is a sense in which the procurator can be said to “represent,” to be the representative of the corporate entity whose authority he bears; and indeed the term “represent” (repraesentare) is used in medieval documents precisely to designate this function. But the traditional medieval theory of corpora¬ tion did not yet contain the notion of representation associated with the modern theory of democracy, although the beginnings of the develop¬ ment of that notion can be found in this era. The idea of representation arose almost insensibly at first in the religious community, where the notion of bringing together in some way the whole Church can be seen to underlie the actual late-twelfth and thirteenth-century efforts of various popes to hold general Church councils. It has been maintained that, without even using the term explicitly, Pope Clement V gave a precise meaning to representation for the first time when he invited certain bishops to come together for the purpose of sending common delegates to the Council of Vienna in 1311, a gathering consciously intended to be and accepted as being a representation of the universal Church.52 What was striking about this event from the point of view of our interest in the theory of consent was the clear awareness of the gathering as embodying the notion of a collective unity, a social community, and of it having been brought together for the defence and advancement of the common interests of the Christian community as a whole. Twelfth-century jurists had begun to be aware of the notion of corporation and of its value in dealing with the increasing complexities of administration and jurisdiction in both temporal and ecclesiastical polities. At the same time, the more theoretical aspects of the problem of what representation was present in those exercising authority were coming under consideration, however indirectly. The functioning communes of the Italian city-states, for example, gave focus to some of the canonist views. Applying the principles as they understood them of how the ruler represents his subjects, they described elected magis¬ trates in a commune as acting in the place of the commune itself (the universitas), and of all the members of the universitas. In the words of one historian of the period they thus began “arriving at the formula52. Lagarde, “Idee de representation.

Thirteenth Century

117

tion of the idea of representation before the term itself came into use.”53 The Glossa ordinaria speaks of “decurial leaders who act for the community as a whole and are deputies for the whole state” (decuriones qui praesunt universitatis et deputata loco totius civitatis).54 Pillius speaks of those “who having been elected by all have power conferred on them by all" (cum omnibus sint electi ab omnibus est eis cone esse pates tas).55 Hugolinus deduced the modern concept of representation from this idea of election: “the whole or the greater part, or those elected by the greater part of the community, act accordingly as the community as a whole would act' (quod universalis vel maior pars, vel illi qui a maiore parte universitati electe sunt,faciuntperinde est ac si tota universitasfaceret).5& And Roffredus asserted that “what was done by order of the consuls of a camp was seen to have been done by order of all of the citizens,”57 a maxim recalled explicitly by Boniface VIII in the Regulae iuns, 68 and 72.58 What is apparent here is the realization of the value of giving procedural specification to a theoretical concept. Perhaps the clearest medieval (and later) expression of this value appears in the assertion, which is both theoretical (via definition) and procedurally conclusive, that the weightier part (sanior pars) of any group is the majority (maior pars). Acceptance of this definition identifies the procedure (method) whereby the community expresses its will. Thirteenth-century canonists working at applying such principles to the Church made them more precise, while at the same time, however, moving specifically away from the element of communal delegation of authority to the ruler. They were less interested in how the community power which lay behind the authority exercising it came voluntarily into its possessor’s hands from the different members of the communi¬ ty, than in the explicit but simple notion that he held it from the community. The issue of how the ecclesiastical authority, pope, bishop, or abbot, came by his authority was of sustained interest among canonists and theologians at this time largely only through the “back door,” so to speak. The issue of how a ruler acquired his authority

53. Ibid., p. 432. 54. Glossa ordinaria 1.160, cited by Lagarde, “Idee de representation,” p. 432, n. 2. 55. The Pillius text is also cited by Lagarde, ibid. 56. Hugolinus, cited by Lagarde, ibid. 57. Roffredus Quaestiones sabbathiae 27, cited by Lagarde, ibid. 58. Boniface VIII Regulae iuns 68 and 72, cited by Lagarde, ibid.

118

Consent, Coercion, and Limit

came into focus from the perspective of how it might be taken from him in circumstances where he abused it. Though not doing so entirely adequately (some of the monastic constitutions being an exception), ecclesiastical and canonical writers did address the problem of how a malevolent or perverse spiritual authority, even a pope, might be removed from office. And here the theoretical notion that his authority devolved on him in some way from the community over whom he exercised it could be put to use. Late-thirteenth-century civilian jurists who addressed the same general issue of how an authority represented or acted for his community were more successful in beginning to delineate the notion of how power transferred from people to “representative,” though still without a clear modern specification for the term, and without employing it. In mid-century Roffredus (d. 1250) spoke of the magistrate as “representing the image of the whole state” (totius civitatis imaginem repraesent).59 Later, taking advantage of groundwork laid by the canonists in respect of the development of the concept of personification of collective life, and less deterred by the idea of treating the concept of the people in terms that dissociated it from the individuals who constituted it, jurists came to associate the idea of representation naturally with the fiction of a collective personality (public corporation). Albert of Gandino inquired specifically whether a community could plead in a criminal court through a proctor. His first response was in the negative, on the grounds that every private person must appear himself and that, inasmuch as the universitas is embodied in the single person who stands for the whole community, that person represents the power of the [corporation’s] one person, and hence the ruler himself must appear. But he goes on to say that, in a second sense, it must be admitted that the syndic precisely represents the hctive personality of the whole community (repraesentat vicem umversitatis); and if the syndic is thus representative, his being present can be taken as if the universitas were present in person.60 Here is a text clearly designating a political authority as representing (in the modern sense of that term) the community over which he has authority. The term was so employed from the end of the thirteenth century, by jurists first;

59. Lagarde, “Idee de representation,” p. 433, and n. 49. 60. Albert of Gandino Tractatus de maleficiis, reproduced at the end of Tractatus de maleficiis, ed. Venice, 1584; cited by Lagarde, “Idee de representation," p. 433, n. 59.

Thirteenth Century

119

and beginning with Bartolus of Sassoferrato6' it became common currency.62 I he term “representation” did not receive any very precise political of juridical meaning, however, during the century in which it began to receive concrete expression. The term “to represent” was itself ancient, appearing in classical glossaries in connection with the concept of justice, and in classical literature in the sense of “to reproduce”; it appears once in Tertullian with the modern connotation.63 A typical thirteenth century theological meaning for the term can be seen in Thomas Aquinas’s use of it in the Summa theologiae, where it connotes the etymological sense of image or allegory.64 It appears frequently with this meaning in a political context also; a temporal or ecclesiastical authority, prince, king, ruler, pope, bishop et al., is said to “represent” (in the sense of being an image or a symbol of) the community over which he exercises authority. In this meaning there is a fusion of the classical meaning of jurisdiction with the Christian element of alleg¬ ory.65 The term underwent a somewhat different transformation in meaning among both the civilian and canonical jurists of the Middle Ages; and it was their efforts that finally produced the modern meaning for the term. By the beginning of the fourteenth century, they were beginning to use “represent” to express the personification of a collective life and to determine the rights of the instrument or individual charged with its interests. The juridical reality being represented, however, was not the same for all. There are two distinct elements in this evolved notion of representa¬ tion: that of personification of a collective life, and the designation of the instrument representative of the collective life. The second of these may seem the more important, because it is precisely this feature that occurs first to the modern mind when the concept of representation is involved, and because historical reflection leads rather easily to the realization that the technique for designating a representative instru¬ ment or entity and for bringing it into being was likely to have been 61. There is a biography and account of Bartolus’s doctrines produced early in this century: Woolf, Bartolus of Sassoferrato. 62. Lagarde, “Idee de representation,” p. 434 and n. 2. 63. Tertullian De jejuniis 13, cited in Lagarde, “Idee de representation,” p. 434 and n. 2. 64. Thomas Aquinas S.T. 1—2. 95.3. 65. Cf. Kantorowicz, King’s Two Bodies, esp. pp. 273-313.

120

Consent, Coercion, and Limit

developed over time as the need for it was perceived. Yet the element of personification of a collective entity is equally important; and it is the more crucial of the two when trying to locate the medieval origins of democratic constitutional theory. For while it is possible to find many instances of the notion of representation in medieval political texts, the meaning normally conveyed is that of symbolic representation or personification of an entity that is a whole, conceived of as an abstraction, rather than a collective whole constituted of individual parts. Thus, for example, when John of Salisbury and even later Thomas Aquinas spoke of a political ruler as “representing” the people,66 what they had in mind was that the ruler in some allegorical, symbolic way embodied or personified the whole community. Not as an individual, of course, but in virtue of holding office the ruler “was” the community as a whole. He stood for the community as their regent, the one who exercised power “for them,” the power of the universal whole. This notion can be seen in fully explicit form in Aquinas, when he uses the term “represent” and the notion of the ruler as “he who has the power of the whole” (vis universitatis) in the same text/’7 In this sense the community is not so much a collective whole of individual members each with individual rights as a part of the whole, as it is an abstraction or, better, an image of a whole. Ultimately, this is why the question of how the people were to express their consent to having the personifi¬ cation of the commonweal exercise authority held so little interest for many medieval political writers and legists. The ruler was seen, primarily, not to represent the individual citizens’ social interests and personal rights, but to represent the community as a disembodied whole. Only when society as a collective whole came to be viewed as a collective whole of individuals, each with individual interests and rights, did the notion of representing the community begin to reflect the feature of representation associated with a democratic form of polity. The historical question, then, of when the first forms of parliamentary democracy can be seen in western Europe can only be answered in terms of a representative gathering or institution that reflects this meaning of representation. To summarize and advance this discussion at one and the same time: 66. For John of Salisbury Policraticus 5.6.548D, 549A and c: Part 2, 1 above; for Thomas Aquinas, see n. 67 and Part 3, 3A. 67. Thomas Aquinas S.T. 1—2.95.3; cf- John of Salisbury Policraticus 4.6.523A; 5.2.540B; 4.3.5 i6d. Aquinas repeats almost verbatim a formulation of Bulgarus from the Justinian Code, Dig. 50.167-76, cited in Lagarde, “Ideede representation,” p. 432, n. 1.

Thirteenth Century

121

the notion of a collective whole of individuals developed in the practice of the Church and among the canonists of the thirteenth century, but this concept received “theoretical” consideration among civilian jurists only later. The perception, then, of political society as a collective whole whose individual members had individual rights and interests to be “represented” by political authorities came later among civilian jurists and theorists of temporal polity than among canonists, whose interests, however, were directed to a theory of spiritual or ecclesiastical, rather than temporal polity. At the same time, any retention of the older Germanic and feudal notions of law and personal rights and interests delayed the perception of personal rights and interests in public law insofar as these older conceptions focused virtually exclusively on private law. Even while the perception was developing of the practical advantages in formulating a mechanism for the expression of legal interests and rights at a distance—delegation of authority, representa¬ tion as involving the designation of an organ or person to embody these interests and rights, which became the essential feature of the second element in the modern juridical concept of representation—the actual developments themselves were seen for some time to apply to matters of private law and to be applicable to issues to be treated as if they were matters of private law. Accordingly, even where the evolving concept of representation was applied to circumstances and issues we accept as public, and even in circumstances that might be seen as public (for instance, parliaments and estates general or their equivalents, of which scattered examples can be found throughout the thirteenth century), these events and the documents and contemporary terminology associated with them do not yet illustrate clearly the sense of represen¬ tation and required popular consent associated with modern demo¬ cratic institutions. C. The Concept of Full Powers (Plena potestas) Another concept of considerable interest and importance in the study of medieval political thought and practice, and one intimately bound up with the notions of corporations and representation by proctors, is that of “full powers” {plena potestas).68 Representatives of corporate

68. Basic literature on plena potestas is plentiful: see Post, "Plena potestas"', Benson, “Plenitudo potestatis”; Edwards, "Plena Potestas”', Clarke, Medieval Representation', Cheyette, Lordship and Community.

122

Consent, Coercion, and Limit

persons were required to have full powers to consult and consent; hence an understanding of what was meant by this requirement for consultation and consent entails an understanding of the meaning of plenapotestas. Again the concept had an origin in Roman law; and again its adaptation and extension among medieval legal procedures came about through the revived interest in Roman law among canonist and civilian jurists of the twelfth and thirteenth centuries.69 The notion that someone is truly a representative or delegate of someone else only to the extent that he has “full powers” to act for the person he represents is commonplace in modern legal and political theory, even though its reality in the latter sphere is often hazy at both ends of the representational spectrum. The electorate sometimes expresses dissatisfaction with its elected representative for taking a position with which they do not agree and thereby failing to “repre¬ sent” them properly; similarly, elected representatives frequently nowadays do their best by using modern polling techniques to discern the views they are supposed to represent, and lay themselves open to the accusation that they are simply following rather than leading their constituents. The concept of full powers can be found often in medieval legal and political thought, where its presence and use, like that of the notion of consent, sometimes has been taken to presage the existence of some form of representative parliamentary government. It appears, for example, in the mandates carried by knights and burgesses to the earliest English parliaments, and by delegates of cities and towns to Spanish cartes and French etats-generaux; and for this reason it has been interpreted as implying an almost political or sovereign consent limiting royal authority in such gatherings.70 An appreciation of its original meaning in Roman law and of its medieval applications bylegists in both laws, however, yields a more modest interpretation of the evidence for its medieval currency being a significant sign of a modern theory of popular sovereignty. The emperor Alexander Severus described the requirements and limits of the authority needed by a proctor in order to represent his principal adequately in court; the legislation appears in the Justinian Code at 2.12.10. There is evidence that this legal principle was known and commented on in Italy perhaps

69. Post, Studies, p. 93 and n. 9. 70. This interpretation can be seen in Clarke, Medieval Representation, p. 291 and pp. 200-98.

Thirteenth Century

123

as early as the ninth century,71 although no explicit reference to plena potestas in respect of representation in secular or civil jurisdiction has been found even as late as the end of the twelfth century. There is good reason to suspect that the concept was in use in civil administration by this time, however, because it is referred to in the 1180s in a canonical treatise on legal procedure.72 The concept appeared much earlier and in a different context in sixth-century papal correspondence: summoning his vicar, Anastasius of Thessalonica, Pope Leo I stipulated that his request for the vicar to appear before him rested on the pope’s concern for him, and not on the full papal authority to summon (in partem sollicitudinis, non in plenitudinem potestatis).73 The term “full powers” appears again in a decretal of Gregory IV to the bishops of Gaul, Europe, Germany, and all provinces dated at Colmar, 8 July 833;74 and this document was the basis for a spurious interpolation by the Pseudo-Isidore to a genuine decretal of Vigilius.75 These three classic statements of plena potestas applied to the papacy, two authentic and one a forgery, were rediscovered in the eleventh century; and the canonists of the later part of this century and subsequently employed them in both canonical and political treatises: Gratian reproduced all three in the Decretum.7b As early as the period 1182—85 a canonical book of procedures (ordo mdicianus) asserted that a proctor should receive full powers;77 and in 1200 Innocent III was summoning proctors from Italian city-states to come to the papal curia with full powers.78 The notion is found also in Rogericus79 and Azo,8° as well as in Accursius, one of the most authoritative of thirteenth-century legists.81 The fourteenth century 71. Post, Studies, p. 93 and n. 9. 72. Ordo iudiciarius Bambergensis (ca. 1182—85), cited by Post, Studies, p. 93, n. 10. 73. Leo I, Epistolae 14.1 (PL 54:671), cited in Benson, “Plenitudo potestatis.” p. 198, n.

12. 74. MGH, Epistolae, V, 72-81, no. 14, cited in Benson “Plenitudo potestatis," p. 200, n. 24. 75. Decretales Pseudo-Isidoriana, ed. P,. Hinchius, p. 712, cited in Benson “Plenitudo potestatis,” p. 202, n. 32. 76. Benson “Plenitudo potestatis,” p. 203. 77. See n. 72 above. 78. Post, Studies, p. 97 and pp. 108-9, citing Theiner, Codex diplomatics temporalis sanctae sedis, 1, nos. XLII and XLIII. 7g. Rogericus Summa codicis 2.8, De procurationibus, ed. Palmieri, Scripta anecdota glossatorum, 1:27/., cited by Post, Studies, p. 93, n. 11. 80. Azo, Lectura to Cod. 2.12.10, cited by Post, Studies, p. 93, n. 11. 81. Buckland, Textbook of Roman Law, p. 525.

124

Consent, Coercion, and Limit

shows similar widespread instances of its use by both canonical and secular legal authorities: by the civilian jurists Bartolus of Sassoferrato, Baldus Ubaldus, and Francesco Tigrini, among others.82 An important feature of the medieval legists’ treatment of the original Roman private-law concept of full powers was their fusion of it with other Justinian sources referring to the procurator Caesans,83 a field of law where discretionary power is involved. They extended the concept in this way to apply to the element of “general mandate, that is, authority given to an agent or representative allowing him general or free discretion in actions he was authorized to take on his lord’s behalf, being authorized thus in effect to commit his lord without specific prior authorization or the need to check back for such authorization. Examples of the maturity of the procedure applying the concept of full powers developed by theorists and authorities in both secular and canon law can be found throughout the thirteenth century,84 with the same concept and its formulas for mandate serving not only for representation in courts and ordinary business transactions, but also to express the powers both of ambassadors appointed by princes and cities to negotiate truces, treatises, and other contractual agreements, and of royal procurators and papal legates as administrators.83 Application of the concept of full powers to the temporal political sphere began first in Italy, and spread to the Holy Roman Empire.8 252> 258; and coer¬ cion, 186; and election of ruler, 188; and judge of proper taxation, 184; authority over free subjects requires consent, 183; both tyrants and good rulers claim same needs, 188; cited by Aristotle re best ruler, 184; consent, 186-87, t88; contemporary of Henry of Ghent, 182; distinguished private person from citizen, 184; most rulers tyrants, 188; on arbitrary political action, 183; on election, 186; on legiti¬ mate taxation, 183; people should elect ruler, 185; regretted prevalence of hereditary monarchy, 188; rejected hereditary monarchy, 185; ruler not

334

Index

superior in prudence, 187; ruler \ subject to law, 186; ruler’s advisors should not be cronies, 184; ruler’s authority to tax, 183-84; ruler’s impo¬ sitions must be reasonable, 186-87; sought limits to ruler’s authority, 187; subject not obliged by the unreason¬ able, 187 Godfrey of Trano, i7on good ruler: sign of good subjects, 35 Gratian, 98, 115, 198, 235; accepted vari¬ ables in law, 66, 85; authority can make law, 44; cited by John of Paris, iggn; cited Isidore re law, 61; Decre¬ tum, 32n, 34, 35, 40, 47n, 48m 6yn, 7m, 8in, 850, 86n, 890, 91, g2n, 93n, 94n> 95n> 97- 98n- l66n- !99n- 227ni Decretum cited by Thomas Aquinas, i62n; definition of law, 84; election of bishops 91-94; excluded laity from election of bishops, 92; full powers, 123; limited spiritual authority, 93; only individuals are persons, 114; papal inalienability, 95ns purpose in writ¬ ing Decretum, 82; q ot, 98—99; relativism of law, 85, 166; ruler above the law, 94 Great Schism, 2140, 252, 256 Greek city-states, 440 Gregorian reform, 7n, 57, 76, 113; described as revolution by Berman, 7n; on episcopal election, 86, 90-91; place of people in episcopal election, 90 Gregory I (the Great), 34, 35, 39, 41, 6on, 227; rejected pseudo-hereditary form of monastic election, 1440; Pasto¬ ral Care, 50 Gregory IV: and full powers, 123 Gregory VII: and episcopal election, 90; introduced concept of better part into canon law, 139 Gregory X, 133 Gregory XI: applied two-thirds majority to chapter elections, 142 Gregory Nazianzanus, 500 Gregory of Tours: mentioned bishop elected by majority, 138 Gualdo, 152 Guelph, 206 Guido, Terreni, 2360 Hadriana, 88 Haec sancta, 257

Harding, Stephen: author of Charter of Love, 145; second abbot of Citeaux, 145 Hart, H. L.' A., xiv n, xv n, 25gn Henry II, of England, 59; referred mar¬ riage case to episcopal court, 2580 Henry VII, Holy Roman Emperor, 207 Henry of Ghent, 178—82, 183, 189, 252, 258; and deposition, 182; disting¬ uished free men from serfs, 179; on common good, 180; on limit, 180; on representation, 180—81; people as¬ sign authority to ruler, 179; primacy of common good, 181; reflected condi¬ tions in Flanders, 182; residence a sign of consent to obey, 181; ruler not a feudal lord, 179; ruler’s good faith presumed, 181; sacrifice of life an obli¬ gation, 181; subject’s obedience not based on feudal contract, 180; subject’s obligation to obey, 180; supported hereditary monarchy, 179; tax not lim¬ ited to tenth, 181 heresy, papal: no fail-safe constitutional solution for, 236 Hermits of St. Augustine, 15m, 190 Hincmar of Rheims, 6on, 89 Hippolytus, 47 Hispana, 88 Hobbes, Thomas, 226 Hocsem, John: favoured democracy, 158 Holmes, Oliver Wendell, xivn Honorius III: attempted to tax clergy, 107; confirmed qot, 108; required unanimity in papal election, 138 Hooker, Richard, 82 Hostiensis, 1370, 17m; adviser of Henry III, 77; favoured unanimity, 137 Hubert of Canterbury, 10in Hugh of St. Victor, 230, 74, 198 Hugolinus: and modern concept of rep¬ resentation, 117 human nature: social for Augustine, 31 — 32 humans: not intended by God to have do¬ minion over one another, 29 Humbert, Cardinal, 89; Adversus simoniacos, 8gn Huy, 157 inalienability: of papal authority, 950 individual: can see defects in law, 224; distinguished from person, 164; likely to obey law they help make, 223; in

Index William of Ockham, 230; only reality that exists, 240; person and citizen, 223 infallibility, 243—45; l*es with total aggre¬ gate of Church members, 243 Innocent I: his decretals in canon law, 79 Innocent II: election of contested, 13839; not elected by unanimity, 138 Innocent III, 108, 124, 141; and full pow¬ ers, 123-24; first pope to consider taxing clergy, 107; invitation to Fourth Lateran Council, 107; standardized monastic rules, 145; summoned proc¬ tors, 100; trained in law at Bologna, 103; use of qot, 103 Innocent IV: and majority, 143; called pope index ordinanus of all humans, 39; consent of people needed to debase coinage, 143; use of qot, 104 Institutions of Premontre, 145 International Commission for the History of Representative and Parliamentary Institutions, 5 Ireland, 50 Irenaeus, 28 Isidore of Seville, 227; connected law with justice, 61; definition of law, 35, 50; definition of state, 50; Etymologiae, 33, 35, 4on, 6in, 84, 85m i66n; used Cicero’s definition of justice, 162 Israelite monarchy. See monarchy, Israelite Israelites, 14, 17, 21; first king chosen by God, 43; first king identified by lot¬ tery, 24, 42; history of, 22; leaders both priests and rulers, 22; monarchy of, 22-23; temporal polity, 22 Ivo of Chartres, 630; Decretum, 80, 8in; first to distinguish flexible and in¬ flexible law, 8on James of Viterbo, i63n Johannes Teutonicus, 103m use of qot, 103 John, king of England, 10m, 127, 131; full powers, 124 John XXII, 2ign, 230, 232n, 235n John Chrysostom (St.) 28, 35, 50m distin¬ guished between office and office¬ holder, 35 John ofjandun, 1630 John of Paris, 9, 23m 27m 44m 850, i68n, 195-205, 216, 217, 258m ac¬ cepted variables in law, 85; and general

335

Church council, 133m and repre¬ sentation, 200; categories of spiritual crime, 198—99; Church has only spiritual jurisdiction, 198; coercion, 203-4; consent, 196-203; consent supposed withdrawn for cause, 200; excommunication maximum spiritual penalty, 198; favoured mixed constitu¬ tion, 167; general Church council best to depose pope, 199; indirect pow¬ er of Church, 203—4; indirect pow¬ er of spiritual on temporal, 199; influ¬ enced by Aegidius of Rome, 197; influenced by Aristotle, 201; influen¬ ced by Aristotle’s Politics, 196; influ¬ enced by Thomas Aquinas, 196; limit not treated explicitly, 205; mixed (constitutional) monarchy, 201-3; monarchy best form of polity, 2013; monarchy involves election by peo¬ ple, 196; on consent for ecclesiasti¬ cal authority, 197—201; on excommuni¬ cation, 198-201; on limit to authori¬ ty, 198; on papal resignation and de¬ position, 197—201; on role of bar¬ ons and peers, 196; on role of college of cardinals, 197-98; people a corpo¬ rate entity, 212; people should share in government, i68n; physical coer¬ cion hard to apply from distance, 204; preferred monarchy, 196; rejected world temporal government, 204; role of people in deposing pope, 199— 200; seems more modern than Marsilius of Padua, 216; taught at Univer¬ sity of Paris, 195; variety of forms of polity, 204—5 John of Salisbury, 39m 42, 57-70, 115, 161, i6gn, 176, 179, 257, 258; ac¬ cepted obedience to evil ruler, 67; coer¬ cion, 69; distinguished two kinds of law, 63; familiar with Roman law, 61, 63; flexible/inflexible distinction in law, 166; founder of western political science, 58; influenced by Decretum, 84; meaning of election, 65-66; mean¬ ing of ruler as representative of people, 120; meaning of votes of peo¬ ple, 65—66; Metalogicon, 64m 7on; need of ruler to take advice, 65; on ty¬ rannicide, 68-6g, 96; people a cor¬ porate entity, 212; Policraticus, xix, 42n, 58, 59, 6on, 62m 63m 65, 66n, 67m 68n,69, 70, 8in, 84, 95, i2on, 1620,

336

Index

i66n, 212; procedure for temporal succession, 65-68; role of popular con¬ sent in ecclesiastical election, 67; ruler above the law, 221—22; ruler bound by the law, 60—65, 221—22; ruler can dispense from law, 65; ruler embodies state, 221; ruler has pow¬ er directly from God, 60, 66n; ruler should consult men of letters, 650; ruler’s power is sacral, 60; theory of law static, 166; two types of law, 80; used Gratian 6yn, 84; used Roman law to define law, 63 Joshua, 201 justice: as harmony, xvi; as interest of stronger, xvi; defined by Aristotle, xvi; defined by Cicero, 33; defined by Plato, xvi; defined by Stoics, 33; defined by Ulpian, 34; distinction between basse and haute justice, 157; es¬ sential characteristic of state for Augus¬ tine, 33, 39-41 Justin Martyr, 20, 42 Justinian Code, 34, 61, 62, 630, 75, 100, i2on, 124, 165; citations to: 34n, 4m, 6on, 6in, 62n, loon, 10m, io2n, 1030, non, 113m i2on, i28n, i36n, i4on, i42n, i43n, 18m; full powers in, 122; majority (maiorpars) in, 136; qo t, in, 100, 136; sending of proctors, 100 Kilkenny: site for meeting of Irish towns confederation, 124 King: of Israel, 60; of Israelites limited by law of God, 43; two persons, indi¬ vidual and crown, iogn. See prince and ruler kingdom of Christ, 21 kingdom of God, 17 Kingdom of Sicily: and full powers, 125; sent proctors, 100 kingship: elective among Germanic tribes, 54-55; hereditary among Germanic tribes, 54 knights and burgesses: had full powers, 122 Lactantius, 35 laity: included in general Church council, 132; not to be involved in election of bishops, 92; status in Church council, 132; status of rulers at Council of Lyon,133

Laon,121 law: Aristotle, xii; canonical (ecclesiasti¬ cal), xix; civilian, xix; concept of, xii; coercion,only essential feature, 21 in; conformity to as limit, x, 2-3; de¬ scriptive and prescriptive, 165; formu¬ lated by experts, 224; gift of God, 6on; imposes limit, 5m; Isidore of Se¬ ville, 35; medieval, 11; medieval canon, 7n, 10-11; medieval civil, 10— 11; of the Burgundians, 55; Plato, xv; relativism in, 166—67; revival of study of, xix law, canon: concept of better part intro¬ duced into by Gregory VII, 139; di¬ verse and confused in Carolingian peri¬ od, 79; influenced Italian city-states, 154; revisions of 1917 removed concept of better part, 139 law, common: English, 6, 257 law, eternal: meaning in Thomas Aqui¬ nas, 167 law, feudal: and consent, 110—11; only individual is a person, 114; repre¬ sentation in, 113; rested on personal contract, 129 law, Germanic: only individual is a per¬ son, 114; representation in, 113 law, natural, 16m, 204; for Thomas Aquinas, 166; variety of meanings, 166-67 law, public, 97, 214 law, positive (human): extension of natu¬ ral law, 167 law, Roman, 6, 55, g8, loon, 127, 128, 166, 211, 216, 257; influences in Anglo-Saxon England, 76; interest in sustained by clergy, 75; majority in, 136; persisted in Gaul, 75; revived in 12th century, 76; source for medi¬ eval law, 11; terminology in Vulgate, i8n lawmaking: office of public person, 168; office of whole people, 168 leader(s), Church: consensus normal method of selection for first ten cen¬ turies, 137; how selected, 134—43; elec¬ tion procedures for became models for parliamentary practice, 135; elec¬ tion procedures formal and com¬ plex, 135; seen as models, 135 legal positivism, xivn, 21 in, 25gn legislative assembly : in Carolingian era, 55; in Scandinavian countries, 55

Index legislator: efficient cause of law, 218; ra¬ tionality essential to, 221 legislator, human: meaning in Marsilius of Padua, 217-21 Leo I, 48, 123m accepted imperial role in episcopal election, 87; considered differences of choice legitimate, 137; distinction between eligere and expetere, 92; distinction between plebs and populus, 87; election of bishops, 91; full powers, 123; popular consent in elec¬ tion of bishops, 86; Epistolae, 48m g2n lex libertatis, 250 lexrcgia, 113,131, 162m 181,228; rejected by Thomas Aquinas, 165; shows use of qot, too Liber usum, 145 liberty, of individual, 250 Liege, 158; had quasi-republican consti¬ tution, 189 Limerick: in Irish confederation of 1285, 124 limit, 254; acceptance of not sign of popu¬ lar sovereignty, 129; concept distin¬ guishing two basic forms of polity, xiv; essential feature of Aristotelian polity, xvi-xvii; essential feature of Platonic polity, xvi; expressed in parliament¬ ary democracy in three ways, x; forms of, x; Henry of Ghent, 180; in authority of Jewish king, 43; John of Paris, 205; mechanism to protect common good from tyranny, 132; most typically medieval concept in politi¬ cal theory, xvi-xvii; never denied by Aegidius of Rome, ign, 195; of ten¬ ure not common notion, 235; on papal authority, 235; on spiritual authority in Gratian, 93; Thomas Aquinas, 173; to ecclesiastical authority, 198; to political authority, x Livy, 1670 Locke, John, 226; Second Treatise on Gov¬ ernment, 26 lottery: means of selecting ruler, 42, 68 Louis IX, of France, i62n Louis of Bavaria. See Ludwig of Bavaria Lucan, 34n Ludwig of Bavaria, 2ig, 220, 229, 230, 234; defender of peace, 2 ign Lupoid of Bebenburg, 247; distinguished emperor’s national from universal authority, 2470 Luther, Martin, 249

337

Machiavelli, 151 Magna Carta, 5, 127, 131 magnates and prelates: represented whole realm for Bracton, 136 maior pars, 87; Cornelius elected pope by, 138; concept in Roman private law, 136; majority voting at Council of Afri¬ ca (418), 138; majority voting at Council of Antioch, 138; majority vot¬ ing at Roman council (499), 138; not always numerically larger part, 136; not defined in Bracton, 136; synony¬ mous with sanior pars, 87; two-thirds of whole, 136 majority (maiorpars), 244; absolute less frequent after mid-13th century, 143; accepted at Council of Trent, 143; accepted by general chapter at Citeaux, 141; alternative to unanimity, 142; and better part, 141; approval of, 8; contains qualitative and quantita¬ tive features for Marsilius of Padua, 227; bishop so elected for Gregory of Tours, 138; can elect emperor 142; candidate generally identified with bet¬ ter, 140; candidate identified as bet¬ ter by Bernard of Clairvaux, 139; dis¬ tinguished from better vote in Fourth Lateran Council, 140; election at Genoa, 141; election at Parma, 141; election at Venice, 141; equivalent to unanimity, 216; formal, 141; identi¬ fied with better part, 141; Innocent III elected by, 139; larger than sim¬ ple required for important decisions, 154; no necessary quantitative sense for Marsilius of Padua, 221; number presumptive sign of superiority, 142; simple, 141; simple approved by Third Lateran Council, 142; simple as quorum, 153; simple used at Tonnerre, 141; simple, Symmachus ac¬ cepted election by, 138; simple, Vigilius elected pope by, 138; two-thirds ap¬ proved for chapter elections, 140; twothirds, canon law approved for epis¬ copal election, 140; two-thirds for pa¬ pal election, 140; two-thirds used in episcopal election, 140 March of Ancona: sent proctors to papal curia, 100 Marsilius of Padua, xii n, 27m 47, 630, 17m, 173m 179m 184, 192m 193m 201, 209-29, 237, 238, 241, 242, 248,

33«

Index

252, 260; assembly ot all citizens to \ approve laws, 224; authority in early Church, 226; best ruler obtained by election, 259; cited Aristotle, 260; con¬ sent essential for legitimate political authority, 220; consent in acclamation, 224; contemporary of William of Ockham, 230; corporation theory of polity, 211; critic of papacy, 210— 11; criticized by William of Ockham, 232—33; Defensor minus, 232m De¬ fensor pacts, 48m 15m, 210, 211, 213m 215m 2i7n, 2i8n, 219, 220, 22m, 223m 224m 225m 226m 227m 228n, 229, 244, 2bon; definition of law, 630; definition of law from Azo, 211; distin¬ guished plebs and populus, 87; elec¬ tion best way to establish government, 213; election, no preferred mecha¬ nism for, 220; forerunner of modern democratic theory, 210; human leg¬ islator has its own will, 217; individuals can see defects in law, 224; individu¬ als come together to form polity, 226— 27; individuals likely to obey law they help make, 223; infallibility lies with general Church council, 242; influenced by Aristotle, 211, 217, 218, 224, 227; law as coercion, 21 in; law formulated by experts, 224; legislator efficient cause of law, 218; maior et sanior pars, 215; majority has no neces¬ sary quantitative sense, 221; majority has qualitative and quantitative fea¬ tures, 227; man of his time, 211, 214, 216; meaning of election, 220; ordinary citizen has limited capacity, 224; peace is aim of government, 219; people an abstract concept, 220; people as corporate entity, 212, 214; people as human legislator, 213, 214; "people” has qualitative meaning, 221; people have parallel role in church and state, 228; polity directed to common good, 217; popular will basis for good government, 210; preferred elected monarchy, 220; prudentes, 225; prudentes guide individuals to form polity, 227; rationality essen¬ tial in polity, 217; rationality essential to legislator, 221; rejected higher au¬ thority as source of temporal power, 213; rejected spiritual authority over temporal ruler, 213; republican

views of, 150; Roman emperor prin¬ cipal part, weightier part, and human legislator, 228; ruler embodies poli¬ ty, 217; State a collective whole, 216; subordinated church to state, 212; supported Ludwig of Bavaria, 219; theory applicable to church and state, 216; weightier part, 218—21; weightier part embodies state, 221; weightier part more perfectly embodied in mi¬ nority, 225—26 Martin of Braga (St.), 34 Marxism, xviii master general: elected by Dominicans, 142 Matthew of Aquasparta, 85 Matthew Paris, loon, loin; used q 0 t, 100 Melchisedech, 23 Michael of Cesena, 244; master general of Franciscans, 231 minority, 136 minority views: not welcome in early Church, 137; penal provisions at¬ tached to in Germanic law, 137 minutes: of council meetings, 154 mirror for princes, 49, 50, 58, 61, 159, !93 monarch, well tempered: Ludwig of Ba¬ varia embodiment of, 219 monarchy, absolute, 26, 2570; best form of polity, 194, 196, 201—3; best if ruler of perfect virtue, 202; constitu¬ tional, John of Paris, 201—3; elective preferred by John of Paris, 220; hered¬ itary favoured by Henry of Ghent, 179; hereditary rejected by Godfrey of Fontaines, 185; hereditary or elective, 194; involves people electing, 196; mixed, 201-3; Israelite, 22, 23, 24— 26, i68n, 201; Israelite, election by God primary, 172; Israelite, model for Thomas Aquinas, 172; Israelite, people’s consent an acclamation, 172; mixed best for Church, 202; pre¬ ferred by Thomas Aquinas, 167 monasticism: medieval, 55 Monte Cassino, 143 morality and law, 254 Moses, 23, 66n, i68n, 201 mystical body, 106 nation-state: relationship between ruler and subject not personal. 130 necessity: basis for right to tax, 128;

Index efforts to define to limit ruler’s authority, 133; knows no law, 166 New Testament, 16-17 Nicholas II: on election of bishops, 89—qo nominalism, 236, 239, 261; in William of Ockham, 26m Norman Anonymous, 70—71 Norman Conquest: increased use of Ro¬ man law in England, 76 obedience: must be withheld, 176: not re¬ quired when authority misused, 176; to evil ruler accepted by John of Salisbury, 67; unconditional only re common good, 181 obligation: to obey temporal authority in John Chrysostom. 35; to obey tem¬ poral authority moral and religious for Christian, 21 Odofredo, 18m Old Testament, xviii, 14, i68n, 172; cited by John of Salisbury, 60; superseded by New, 17. See Sacred Scriptures: citations opinion: differences of not inimical to true religion for Leo I, 137; division of considered scandalous in Christian community, 137 opponents: can be subjugated, 233 Order of Friars Minor: founded by St. Francis of Assisi, 144 Order of Preachers: founded by St. Dom¬ inic, 144; rule in, 143—48 ordinary citizen, 224 Origen, i7n, 28 Original Sin, 32, 34, 191, 233; effects of, xi, 36—37; effects of for Augustine, 31 Orvieto, 15m; had form of parliament, >5> Ovid, Metamorphoses, 34n Oxford, 104; study of Roman law at, 76; William of Ockham taught at, 230 Pachomius (St.), i44n Paduan, 210, 252, 260; republican form of polity, 2i8n; University of, 210 paleae, 82 Papal States, and full powers: sent proc¬ tors, 100 Papias the Lombard, 33 Papinian, 62n parliament, 252; English and full powers, 122; fourteenth-century English,

339

251; of 1295 as beginning of English parliamentary system, 99 parliamentary democracy, xi, xiii, xiv, xviii, 4 Parma: majority elections, 141 Paucapalea, 34 Paul (St.), 44; submission to political au¬ thority is submission to God, 29 Paulus, loon, 1030 peace: aim of good government, 219 people: an abstraction for Marsilius of Padua, 220; aggregate collection of individuals, 214; can depose tyrant, 174; can elect representatives to general Church council, 239; can make law, 238; can withdraw authority from ruler, 162m, collective concept for Marsilius of Padua, 214-15; collective whole same as aggregate of individuals, 223; corporate entity, 212, 216; corrupt in appetite, 194; has quali¬ tative meaning, 221; human legislator, 213, 214; identified with nobility, 56, 131; meaning for Marsilius of Padua, 217—21; naturally fitted to obey, 195; origin of political author¬ ity, 172; parallel role for in church and state, 228; procedure for expression of their rights, 170; rights of in episco¬ pal election, 48—49, 86—90, 91—93, 170; role in deposing pope, 199-200; role in deposition, 198—99; selfgoverning in Benelux region, 156; should elect ruler, 185; ultimate source of political authority, 150; vol¬ untarily assigns authority to ruler, >79 people, Roman, 207; ordained by nature to rule others, 208 people’s democracy, xviii person: corporation considered a, 98— 111; in feudal law only an individual, 114; in Germanic law only an indi¬ vidual, 114 personification: one element in meaning of representation, 120 Philip I, of France: elected by acclama¬ tion, 141 Philip IV (the Fair), of France, 100, 197, 252; constitutional ruler, ign; con¬ troversy with Boniface VIII, 190—91; defeated by Count of Flanders, 159; tutored by Aegidius of Rome, 190 Philip of Alsace, 157

340

Index

Pierre d’Ailly, 256 Pillius, 11711; ruler elected by all, 117 N Pisa: consul officials, 152 Placidus of Nonantula, 93 Plato, 42, 50, 62; Laws, 42; Republic, xi n, xv, xvi n, 33, 42, 62n; theory of law, xv; views re common people, xi plena potestas. See full powers Pliny the Younger, 87 political authority: common good the purpose of, 60; directed to common good, 21; entails obligation to obey, 21; fulfilment of divine plan, 2 1; legiti¬ mate for Christians, 20; legitimate, not natural, 31; subordinate to spiritual authority, 21; unnatural, xi; a religious obligation, 29 political society: natural for Aristotle, 36; purpose is common good, xii; some¬ times best represented by all individu¬ als, 223 polity: formed by individuals coming to¬ gether, 226-27; distinguished as to basic form by concept of limit, xiv polity, Christian theory of, 12-14 polity, theory of: applicable to church and state, 216; branch of moral philoso¬ phy, xii pope: above law for Gratian, 95; can act against temporal ruler casualiter, 236; can act alone, like God, 192; can act outside law, 193; can appoint bishop alone, 192; infallible, 242; obliged to leave office if criminal, 200; should safeguard rights and liberties, 250; source of power, 191; superior to com¬ munity for Gratian, 95—96 popular acclamation: not necessary for John of Salisbury, 66 popular consent, ix, xii, xiii; in Germanic tribes, 51-56, 52m, two aspects, active and passive, xiii, 259 populus: distinguished from plebs, 87; identified with great men of realm, ‘43 populus christianus, 55 Post, Gaines, 109 power, ecclesiastical: over temporal rul¬ ers, xvii predestination: basis for two cities' dis¬ tinction in Augustine, 38; meaning of election in Norman Anonymous, 70 prince: not feudal lord re subjects, 179; ruler over sins, 28. See also Ruler

prince above the law, 61 prince electors: represent whole empire, 249 private property: non-existent before Fall, 233 proctor (procurator), 250; chosen by whole or majority, 136; embodies collec¬ tive person, 114; familiar to Gratian only re individuals, 114 procurator Caesaris: in Justinian Code, 124 provincial: election of, 142 prudentes, 225; bring individuals together to form polity, 227 pseudo-Hadriana, qgn Pseudo-Isidore: and full powers, 123 Ptolemy of Lucca: favoured republic, 2230

quasi-inspiration: method of election, 141 qot, 56, 97, i86n; accepted by Gratian, 91; accepted explicitly by William of Ockham, 238; ambiguous in meaning, 109; applied to individuals by Wil¬ liam of Ockham, 238; confirmed by Honorius III, 100; distinction be¬ tween individual and member of group, 107; in Bernard of Clairvaux, 99; in Gratian, 98-99, 102; in John of Paris, 201; in Justinian Code, 100; in Matthew Paris, 100; in Marsilius of Padua, 218, 220-26; in Thomas Aquinas, 172; in William of Ockham, 250—51; less than a consti¬ tutional principle, 109; meaning in Ro¬ man civil code, 100-102; originated in Roman law, 99; principle of consul¬ tation and consent, 109; principle of legal procedure, 108; underwent devel¬ opment, 104; use re William of Fitzherbert, 104; used by Bernard of Clairvaux, 103; used by cathedral chap¬ ters, gg; used by Edward I, gg; used by Innocent III, 103; used by Innocent IV, 104; used by Johannes Teutonicus, 103; used in Third Lateran Council re clerical consent to taxation, 107; used by William of Drogheda, 104; used in estates general of 1302, 100. See also what touches all quorum: in Italian city-states, 153-54 rationality: entails notion of limit, xv; es¬ sential component of law, xv; essen¬ tial in polity, 217; in political theory, xv;

Index self-limiting concept for Aquinas, x73 Ravenna, too Raymund V, 155 regulae iuris, of Boniface VIII, 117 Remigio de Girolami: favoured republic, 22$n

“Render to Caesar,” 18, 28; in Thomas Aquinas, 164 Rennes, 88 represent: allegorical meaning, tig; in Tertullian, 119; in Thomas Aqu¬ inas, 119 representation, ix, 8, 98, 111—21, 180; Al¬ bert of Gandino, 118; Bartolus of Sassoferrato, 1 tg; by succession, 244; Clement IV, 116; closely associated with consent, 111; Council of Vienna (1311), 116; developed in religious communities, 116; effects of, 98; Henry of Ghent, 180—81; how status ac¬ quired, 98; individual delegation, 248; involves organ or person to embody interests and rights, 120; John of Paris, 200; John of Salisbury, 120; lacking in feudal law, 113; lacking in Germanic law, 113; not clear in Godfrey of Fon¬ taines, 188; powers of, how acquired, 98; Roffredus, 117; Thomas Aquinas, 120; two elements in its meaning, 119-20; William of Ockham, 240—47, 248 representation, corporate: not practised before 1150, 115 representatives, 250—53 republic: favoured by Ptolemy of Lucca, 223m Remigio de Girolami, 2230 republicanism, xviii residence: reflects willingness to obey, 181 resignation: and deposition in Aegidius of Rome, 195; of pope, 190—91, 193; of pope in John of Paris, 197-201 resistance theory, 257 revolt: justifiable to limit of evil opposed, 177 Rheims: 88 Richard of Middleton, 32n right(s): guaranteed by Magna Carta, 131; of Christian to reject positive law, 32; of group the aggregate of indi¬ vidual rights, 240; of individual in William of Ockham, 245; not empha¬ sized in Thomas Aquinas, 164; of

341

the people, 5m; residual, 170, 172—73; subjective, 25gn; to elect distinct from right to consent, 92; to obey high¬ er religious authority, 28 Roffredus, 117; and representation, 117 Rogericus, 123m and full powers, 123 Rousseau, Jean-Jacques, 225; Social Con¬ tract, 36n,2250 royal authority: has superior status re common good and necessity, 129 royal prerogative, 127—33 rule, majority, 133-43- See also majority rule, monastic: standardized by Innocent III, 145 Rule of St. Augustine, 137; used by Do¬ minicans, 144 Rule of St. Benedict, 143—44; concept of community in, 144; eligere appears nine times, i3gn ruler: above the law, 94, 131, 221-22; above the law in Gratian, 94—95; al¬ ways claims to act on good advice, 184; anointed of God, 53; authority of directly from God, 60; best obtained by election, 259; bound by law, 185— 86, 221—22; bound by law in Gratian, 94—95; bound by law in John of Sal¬ isbury, 60—65; can act against heretical pope, 236; can act only for common good, 181; can dispense from law, 65; can dispense from law in Gratian, 95; can dispose of subjects’ goods, 179; can tax clergy without papal con¬ sent, 195; cannot act arbitrarily, 183; decisions of not negotiable, 131; de¬ cisions of not personal, 131; decisions of require agreement, 131; elected by people, 185; election of belongs to people, 168; embodies polity, 217, 221; extends rights to community, 179; has authority to wage war, 183; has popular consent, 54; head of body poli¬ tic, 59; incarnates common good, 180; makes law at pleasure, 113; must obey laws of God, 20; not feudal lord, 179; not superior in prudence, 187; perhaps only one to perceive common good, 181; power of is sacral, 60; provides only consultation, 131; receives authority from people, 179; representative of community, 179; re¬ sponsible for common interests, 131; rights of given by community, 179; rex sacerdos, 70; should practise equality,

342

Index

63; symbol of people, 131; ultimate \ authority in matters of state, 110. See also king and prince Runnymede, 131 Rusticus, bishop of Narbonne, 49 sacerdotiumlregnum, xvii, 10, 29; in Gratian’s Decretum, 83 Sacred Scriptures: authoritative texts for Christians, 14; citations: Acts 1:23, 46; 6:5, 46; 11:2, 46; 15:4, 46; 15:22, 46; 1 Cor. 49:3, 46; Deut., 23; Deut. 1:13, i68n; 17:1-8, 23; 17:14-15, 23; Exod., 23; Exod. 18:21, i68n; Gen., 22; Gen. 14:18, 23; John 18:36, 15; Judges 11:11, 27; Luke 22:38, 21; 23:2, 18; Mark 12:13—17, 18; Matt. 7:2, 62; 22:21, 18; 28, 163; Num. 27:1-6, 67m 1 Pet. 2:18, 20; 2:20, i75n; Prov. 11:14, 27; 20:26, 175ns Ps. 89:29, 67m Rom. 13:1, 20, 28; 13:2, 60; 13:7, 20; 1 Sam., 23-35; 1 Tim. 2:2, 20, 27; Titus 3:1, 20 Saint-Ange: contested election at (1130), 141 St. Lambert, episcopal see of, 189 Samuel, 23—25, 208 sanior pars. See better part Saul, 23-25, 42; chosen by God, 208; deposed by God, 43; deposition un¬ known to Israelites, 43; first king of Is¬ raelites, 66n Schlick, Moritz: distinction between de¬ scriptive and prescriptive law, 1650 sedition, 177 self-sacrifice, 181 Senate, Roman, 228 Seneca, 42; and primitive state of inno¬ cence, 34 Sens, clergy of, 99 serfs, 179 Sienna, 151 Simon de Montfort, ggn slavery: accepted by Augustine, 30-31; legitimate social institution, 30 social contract, 226 society: collection of individual interests and rights, 120; natural, 163; neces¬ sary for human development, 163 society, political: directed to common good, 217; natural, 193 sovereignty, xivn; collective, 132; medi¬ eval Church, 10; national, 169; not

limited, xivn; popular, 229, 233 Spain: full powers normal in, 125; send¬ ing proctors to assemblies, 100 spiritual authority: absolute over tempo¬ ral matters, 19 state: cannot be embodied in person or institution, 247; definition of Au¬ gustine, 61,62-63; distinguished from society by Augustine, 31; purpose is justice, 35 state of nature: Augustine, 31; authority in for Bonaventure, 3m States of the Church (= Papal States), 15m Statute of York, ggn Stephen ofTournai, i62n Stoic: conception of justice, 33; ethical theory, 34 Stubbs, Bishop Williams, 4; on parliament of 1295, 99 subject: accepts obligation to obey by resi¬ dence, 181; can appeal to higher au¬ thority against tyranny, 182; has right to question public necessity, 183— 84; not obliged by what is unreason¬ able, 187; obliged to call of ruler, 183; part of state, ruler is whole, 180, required to obey, 180; should presumer ruler’s good faith, 181 succession: hereditary is normal, 185; he¬ reditary not always best, 185; hered¬ itary preferable to election, 194; hered¬ itary preferred by John of Salisbury,

67 Sulpicius: elected bishop by minority, 138 Super muros Jerusalem: attempt to tax cler¬ gy, 108 Switzerland: pure democracies in, 148 Symmachus (St.): accepted election by simple majority, 138 Synod of Bourges (1225), 108 Tacitus: Germania, 53 Tadino, 152 taxation: based on evident utility, 181; legitimate only for public interest, 183; must be reasonable, 186-87 Tempier, Stephen, i86n temporal authority: established by God, 28; in general legitimate, 28; legiti¬ mate, 27; legitimate even as persecut¬ ing, 28; obedience to a consequence of sin, 28

Index tenth (dime), 181 Tertullian, 28, 1 ign; and meaning of “represent,” 119 Theobald of Canterbury, 76 Theophilus of Antioch, 28 theory of polity, Christian, 191 Thomas Aquinas (St.), 9, 27m 29m 40m 85n> 159-78. 179. l84- i87. 193. 196, 205, 21 in, 217, 258; accepted de¬ scriptive/ prescriptive distinction in law, 165; accepted relativism in law, 166; accepted variables in law, 85; accepted variety of political forms, 171; ambiguous on people transmitting authority, 169; cited Isidore’s defini¬ tion of law, 85; commentary on Pol¬ itics unfinished. 159; common good, 163; conception of natural law, 166; connected rights with human person, 164—65; De regimine principum (On Kingship), 159m 160, i63n, i67n, i68n, 17m, i74n, i75n, 177m 178; On Kingship, 178; did not specify what is Caesar’s, 164; distinguished be¬ tween private and public person, 176; distinguished good ruler from ty¬ rant, 162; distinguished individual from person, 164; distinguished two phases of Israelite polity, i68n; election of ruler belongs to people, 168; em¬ phasis on rationality de-emphasizes co¬ ercion, 178; emphasized ruler’s moral qualities, 162; employed Gratian’s definition of law, 85; followed Cicero on justice, 162; higher authority can establish ruler, 171; human as person transcends end of political soci¬ ety, 163; human law extension of natural law, 167; influenced by Aris¬ totle, 161; justified revolt to limit of evil opposed, 117; knew Policraticus, 174; law can change, 166, 167; law¬ making, 168; meaning of ruler as rep¬ resentative of people, 120; mixed form of government, 167, 203; necessi¬ ty knows no law, 166; necessity to obey tyrant, 175—76; no exprofesso trea¬ tise on political theory, 159; on coer¬ cion, 173-74; on limits to authority, 173—74; on mbmd constitution 167, 203; on tyrannicide, 174—77; people a corporate entity, 212; people have right to elect ruler, 171; political au¬

343

thority rests in people, 169; political society natural, 162-63; political soci¬ ety not ultimate, 163; political theory dialectical, 161; preferred monarchy, 167; ruler subordinate to law, 165; sedition not always sinful, 177; Sent., i75n, i76n; society necessary for human development, 163; stressed au¬ thority not coercion, 161; Summa theologiae, ngn, i2on, i5gn, 160, i65n, i66n, i67n, i68n, 173m i74n, 176m 1770, 178, i87n, 202n; temporal authority established variously, 171; theological meaning of “represent,” 119; theory of polity not compre¬ hensive, 178; treatise on law, 159; two sources of lawmaking authority, 168; used Aristotelian terminology, 162; used Gratian, 162; used Ulpian’s definition of natural law, 162 Thomas of Marlborough, 77 Tonnerre: voting used at, 141 totalitarianism, xiii-xiv, 10 Toulouse, 154-55; advisory council in, 154; had common council, 154; had representative institutions, 154; infor¬ mal voting in, 154; under feudal in¬ fluence of count, 154 Tournai: Henry of Ghent archdeacon of, '79 Tours, 88 townsman: free, 156 tribes, Germanic: emphasized popular consent, 53; political authority limited by law, 55 tribes, pre-Christian, 51—56 truth: may reside in only one individual, 243 Tuscany: cities of and qot, 100 twelfth century: renewal of intellectual life in, 58 Twelve Tables, i67n two-swords concept, 21; in Bernard of Clairvaux, 71—73; in Hugh of St. Victor, 74; in John of Salisbury, 69, 73 tyrannicide: in Thomas Aquinas, 174-77; in John of Salisbury, 96; justifiable as last resort, 177; justified by John of Salisbury, 68-69; justified by Thomas Aquinas, 176-77 tyranny, xvi; limits to acceptance of, 68— 69; no obligation to obey, 176; re¬ course to God from, 175

344

Index

tyrant: necessity to obey, 20, 41,67—68, 175; people can depose, 174-75 Ullmann, Walter, 52 Ulpian, 6in, io2n, i28n, 18m; justice, 34; natural law, i62n; public law, 41 Unam sanctam ,191 unanimity: early election form in Chris¬ tian church, 136; favouring ordi¬ nary man by is better than majority support for superior one, 138; for¬ mal, 141; in Hostiensis, 137; in Italian city-states, 137; required in papal elec¬ tions by Honorius, 138 universal Church: speaks if no member challenges, 243 universitas, 116, 136; corporation or col¬ lective person, 114; embodied in corporate person, 118 universitas regni, 143 University of Paris, 1140, 179, 190, 195 universus populus, 87 Urban II: distinguished between flexible and inflexible law, 8on usurper: can legitimize power by use, 176 utility, evident: basis for ruler’s action, 181; basis for taxation, 181 utility, public: effort to define to limit rul¬ er’s authority, 133 Vacarius: originated study of Roman law at Oxford, 76 valentior pars: weightier part: in Aristotle, 215m See also better part variation in law and polities, 204-5 Venice: majority election at, 141 Vigilius: decretal of used by PseudoIsidore, 123; elected pope by simple majority, 138 Vindiciae contra tyrannum, 26 Vineam domini: invitation to Fourth Lateran Council, 107 Visigothic kingdom, 54 Visigoths, 5m voice of the people: in Alcuin, 56 voluntarism, 261 voting: formal, only one canonically ap¬ proved method, 141; one of three ways approved by Fourth Lateran Council, 141; procedures in Italian city-states, 153—54 Waterford: in Irish confederation of 1285,124

N

weightier part (valentior pars), 221, 228; contains qualitative and quantitative features, 227; efficient cause of author¬ ity and law, 218; in Marsilius of Pad¬ ua, 218-21; more perfectly embodied in minority, 225—26 what touches all, ix. See Q 0 t whole community of realm, 251 Wilks, Michael, 215 will, popular: basis for good government, 210 will of subjects: in Aristotle, 219 William Durandus, 1030; and general Church council, i33n William of Drogheda, 77, 104 William of Fitzherbert: use of q 0 t in his appointment as archbishop of York, 104 William of Jumieges, io6n William of Moerbeke: translated Politics into Latin, i6on, 2i5n William of Ockham, 201, 2o8n, 230—53, 261, 262; accepted qot, 238, 250— 51; applied qot to individuals, 238; at¬ tacked papacy, 231; authority of general council when no pope, 235; authority originates in people, 233; Church is sum of individual members, 241; Church not identical with insti¬ tutional forms; Church speaks only if no member challenges, 243; college of cardinals not higher authority than pope, 235; consent a priori has re¬ served form, 246; consent cannot be delegated, 244; contemporary of Marsilius of Padua, 230; corporation cannot be represented, 240; cor¬ poration a fiction, 240; corporation has no rights, 240; corporation has reality of aggregate of real individuals, 240; critic of Marsilius of Padua, 232—33; denied papal infallibility, 242; denied reality to church and state, 240; de¬ position, 235—36; ecumenical council not higher authority than pope, 235; electors represent whole empire, 247; general council callable by indi¬ vidual Christian, 250; general council convoked without pope, 238; general council decisions do not bind, 246; general council has authority of whole Church, 239; indifferent to mode of governance, 234; individu¬ als, 238, 240; infallibility, 243; influ-

Index enced by Aristotle, 233; limit on papal authority, 235; no private property before Fall, 233; nominalism of, 239; people can elect representatives to general council, 239; people can make law, 238; political authority result of Original Sin, 233; political polemi¬ cist not by choice, 231; political theory of seems not fully coherent, 253; pope or prince can act against other casualiter, 236; pope should safe¬ guard rights and liberties, 250; popular consent, 245; popular consent not only basis for political legitimacy, 234; procurators, 250; rejected concept of full powers, 246; rejected corporate theory 241; rejected papal full pow¬ ers, 250; representation is delegation by individuals, 248; representatives, 250—53; r*§ht of intervention, 236—37; rights of group aggregate of indi¬ vidual rights, 240; rights of individual, 245; Roman empire recognized by Gospels, 234; Roman people naturally rule others, 2o8n; sign of infallibility absolute unanimity, 243; state (com¬

345

munity) cannot be embodied in per¬ son or institution, 247; truth may reside in only one individual, 243; women equal in community, 253; writings: Breviloquium, 233n, 234n; Contra Benedictum, 234n; Contra Joannem XXII, 24 m; De imperatorem et pontificum potestate, 237m Dialogus, 231, 232, 233^ 236m 237n, 238n, 23gn, 24m, 243m 24411, 245n, 246m 247n, 24gn, 25m; Octo quaestiones de potestate papae, 233n, 234n, 237m 247m Opus nonaginta dierum, 231, 236n, 24m; Summalae in libros physicorum, 24on Witan, ggn women: equal individuals in community, 253; members of general Church council, 253; place in Christian commu¬ nity, 253 world government: rejected by John of Paris, 204 York, archbishopric of: and q 0 t, 103 Ypres: scene of revolt, 182 Zabarella, Cardinal, 256

\